FEDERAL COURT OF AUSTRALIA
ADMINISTRATIVE APPEALS TRIBUNAL
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant pay the first respondent's costs, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Introduction and summary
1 The issues on this appeal reveal the challenges in applying the concept of “materiality” set out in the majority’s decision in Minister for Immigration and Border Protection v SZMTA  HCA 3; 264 CLR 421. This appeal throws up with some acuity the question of whether the majority’s reasons in SZMTA have altered the approach as previously understood in Australian administrative law to the circumstances in which either a failure to undertake the statutory task, or a failure to take into account relevant considerations, will be characterised as a jurisdictional error.
2 I gratefully adopt the summary of the background to the appeal and the issues arising which appear in the reasons of Banks-Smith and Jackson JJ. I respectfully differ from Banks-Smith and Jackson JJ on the outcome, and would allow the appeal.
3 In summary, where there was an admitted failure to comply with Direction 79, compliance with which is required by s 499(2A) of the Migration Act 1958 (Cth), then whether this is characterised as a failure to perform the statutory task or as a failure to take a relevant consideration into account, I do not accept the primary judge was correct, or bound, to apply the reasoning in SZMTA in the way his Honour did to such a ground of review. Further, I consider the approach the primary judge took in doing so meant that, almost inevitably, his Honour was drawn into an assessment of the merits of the appellant’s case on review before the Administrative Appeals Tribunal, and into an assessment of what the outcome of the merits review would be.
Hossain and SZMTA
4 It is convenient to begin by considering the High Court’s decisions in SZMTA and Hossain v Minister for Immigration and Border Protection  HCA 34; 264 CLR 123.
5 Hossain was an appeal concerning a decision of the Tribunal affirming a decision of a delegate of the Minister to refuse the appellant’s application for a partner visa. The Tribunal affirmed the delegate’s decision on two grounds. First, cl 820.211(2)(d)(ii) of Sch 2 to the Migration Regulations 1994 (Cth) required an application for a visa to be lodged within 28 days of the last day on which the applicant held a substantive visa unless there were compelling reasons for dispensing with the requirement. The appellant’s visa had been lodged out of time and the Tribunal had found there were no compelling reasons. Second, cl 820.223(1)(a) required that the appellant satisfy public interest criterion 4004, which required that the appellant not have an outstanding debt to the Commonwealth. The Tribunal held that the appellant did have an outstanding debt to the Commonwealth and so did not satisfy the public interest criterion.
6 On appeal, the Minister conceded that the Tribunal had erred in its application of cl 820.211(2)(d)(ii) because it had considered whether there were compelling reasons for not applying the criterion at the time of the appellant’s visa application rather than at the time of review. However, the Minister contended that the error was not jurisdictional because the public interest criterion provided an “independent basis” for the Tribunal’s decision. The High Court accepted this argument.
7 In my respectful opinion, what was said about materiality and jurisdictional error in Hossain was provoked by the particular factual setting to which I have referred; namely, that there was an independent basis for the refusal. Two visa criteria were in issue, and the decision-maker’s approach to only one was affected by legal error.
8 In Hossain at , Edelman J referred to a passage from the reasons of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf  HCA 30; 206 CLR 323 at , concerning the need for an error to “affect” an exercise of power. That passage from Yusuf should be reproduced:
It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
9 In using the phrase “affects the exercise of power” their Honours were not, in my respectful opinion, describing a need for a reviewing Court to be satisfied that the absence of error would, or might, have changed the exercise of power and resulted in a different outcome. In my respectful opinion, what was meant by their Honours was that the error was in its nature of such gravity or centrality that it could be said to have affected the exercise of power. That is the same kind of observation as was made by Gageler J in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  HCA 4; 264 CLR 1, to which I refer at  below. In referring to an error “affect[ing]” an exercise of power, their Honours were not speaking of the particular outcome reached in an individual decision. Their Honours were speaking of the nature of the error to be ascertained by reference to the legislative scheme and its intention about the limits on power that are imposed – asking a wrong question, identifying a wrong issue and the like. For it is these kinds of errors, as their Honours explained, which mean “the decision-maker did not have authority to make the decision that was made”. In that sense, the error affected the exercise of power; the power or authority was not engaged where such an error was made; there was no power conferred to make a lawful decision in those circumstances. As I explain below, a considerations error is of that kind. So too is the failure to carry out the task required by the legislative scheme.
10 I do not understand the kind of explanation of principle given in Yusuf to have been overruled in either Hossain or SZMTA. In SZMTA, as Banks-Smith and Jackson JJ explain, the High Court applied the “materiality” concept from Hossain to a different kind of error; namely, a denial of procedural fairness. I have previously explained some of the challenges in understanding the application of such a concept where there is an express finding of denial of procedural fairness: see DPI17 v Minister for Home Affairs  FCAFC 43; 269 FCR 134 at -.
11 In SZMTA (and the two other cases which were heard and determined with it, CQZ15 v Minister for Immigration and Border Protection and BEG15 v Minister for Immigration and Border Protection), the denial of procedural fairness related to specific documents which were the subject of a certificate to the Tribunal under s 438 of the Migration Act. Neither the certificate, nor the notification by the Secretary to the Tribunal that the documents met the criteria in s 438, were disclosed to the visa applicants. In CQZ15, the High Court held at  that the Full Court was correct to find that evidence sought to be adduced by the Minister on judicial review annexing the documents which were the subject of the certificate “was at least potentially admissible” as relevant to materiality. In BEG15, the documents the subject of the certificate were before the Federal Circuit Court and the Full Court on appeal. At , the majority upheld the Full Court’s decision that the Federal Circuit Court had not erred in finding that the information in the documents
was not relevant to the decision to be made by the Tribunal, had not in fact been taken into account by the Tribunal and could have made no difference to the outcome of the review.
12 In the High Court, the appellant in BEG15 had drawn attention to a sentence in one of the documents stating that a differently constituted Tribunal had not accepted the appellant’s claims “[i]n light of the inconsistent evidence”: at . At , the majority explained its conclusion that failure to give the appellant an opportunity to respond to this was not a jurisdictional error:
The statement was no more than a short accurate description of the Tribunal’s reasons for the initial decision which were already known to the appellant and which, under s 416 when read with s 422B(2), were available to be taken into account by the Tribunal in reaching the further decision without notice to the appellant and without thereby breaching an obligation of procedural fairness. The task of the Tribunal as differently constituted was obviously to make an independent assessment of the merits of the appellant’s claims, including by reference to its own independent assessment of his credit, and there is no basis for considering that the Tribunal was, or was susceptible of being, influenced in that assessment by anything that had gone before. The Tribunal’s reasons for the subsequent decision refer to the existence of the initial decision as an historical fact and to the fact of it having been quashed, but contain nothing to suggest that the Tribunal in reaching that further decision had relevant regard to the reasons for the initial decision.
13 In SZMTA itself, the majority identified four errors in the approach of the primary judge: see . The majority went on to find that the appropriate inference to draw from the invalidity of the notification and the absence of any references to the documents in the Tribunal’s reasons was that the Tribunal had not taken them into account. At , the majority added:
Having regard to the contents of the documents before the Tribunal, however, the appropriate further inference to be drawn was that taking them into account could not realistically have made any difference to the Tribunal’s decision.
14 At -, the majority explained why this was, using the example of one of the documents which was the subject of the certificate under s 438:
To illustrate that conclusion, it is sufficient to refer to the letter of support to which his Honour made reference and which was the focus of submissions in this appeal. The significance of the Tribunal’s failure to take the letter into account is to be evaluated in the context of the Tribunal’s rejection on credibility grounds of the factual basis of the first respondent’s central claim to fear harm, were he to return to Bangladesh, by reason of having been an active member of the Buddhist community. The Tribunal’s statement of reasons explained in detail, with reference to his evidence given at the hearing before it, why it could not accept critical elements of his story of having experienced violence and discrimination. The Tribunal went on to record in its statement of reasons that it had formed its adverse view of the first respondent’s credibility taking into account a considerable number of documents and letters of support for him including from senior identified members of the Buddhist community in Australia. The Tribunal explained that it had given those documents little weight in assessing the first respondent’s credibility because of their generality and because it was clear that none of the writers had witnessed any of the specific incidents which the first respondent claimed to have occurred. The particular letter of support which it can be inferred was not taken into account by the Tribunal by reason of the notification was of the same nature: it was a single-paragraph letter to a Senator from a member of the Buddhist community in Australia referring generally to the adverse treatment of religious minorities in Bangladesh and urging “on the grounds of humanity and compassion” that the first respondent and his family be given “asylum in Australia”. It is simply not realistic to conclude that yet another communication of that nature could have made any difference to the Tribunal’s evaluation of the first respondent’s credibility.
To the extent that the first respondent seeks to support the conclusion of jurisdictional error on the basis that non-disclosure of the fact of notification was in breach of the Tribunal’s obligation of procedural fairness, the same answer applies. Accepting that the breach denied the first respondent an opportunity to make submissions on the validity of the notification and to present his evidence and make submissions in the knowledge that the documents and information which were the subject of the notification might not be taken into account by the Tribunal, the critical fact remains that the documents and information were of such marginal significance that the denial could not realistically have made any difference to the result.
15 This kind of reasoning is the kind of reasoning one would expect to see on an application of ordinary principles in Minister for Immigration and Border Protection v WZARH  HCA 40; 256 CLR 326 and Stead v State Government Insurance Commission  HCA 54; 161 CLR 141. It proceeds by an examination of the issues arising on the review, the applicant’s arguments as put to the decision-maker, the decision-maker’s reasons, and the content of the documents as revealed in the evidence before the reviewing court.
16 It is the kind of exercise which can readily be undertaken when the jurisdictional error alleged is a denial of procedural fairness by failure to disclose documents. The supervising court looks at the subject matter of the alleged denial and reaches a conclusion whether the person was denied the possibility of a different outcome; because, as Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam  HCA 6; 214 CLR 1 at , it is only then that there will be a “practical injustice”.
17 Although expressed by reference to “materiality”, I do not understand the majority in Hossain and SZMTA to be overturning, or overruling, the considerable body of jurisprudence that has been built up in that Court, and in this Court, about when a decision-maker may exceed her or his jurisdiction. Certainly, the reasons say no such thing: in neither case do the majority say that any other decisions of the High Court or this Court which adopt the approach in WZARH or Stead, or Yusuf, or the cases to which I refer below, should now to be considered wrongly decided and should not be followed. That suggests it is important not to adopt too broad or literal a reading of what was said by the majority in SZMTA.
18 In Hossain at , the plurality quoted Minister for Aboriginal Affairs v Peko-Wallsend Ltd  HCA 40; 162 CLR 24 at 40, stating:
The threshold [of materiality] would not ordinarily be met … where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
19 In the footnote the plurality also referred to Martincevic v Commonwealth  FCAFC 164; 164 FCR 45 at -, a decision of a Full Court of this Court (Finn, Kenny and Greenwood JJ). The plurality did so with the abbreviation “Cf”, but there is no explanation of what was intended by this. The plurality certainly did not suggest in their reasons the decision was wrongly decided.
20 Martincevic involved what might be termed a “classic” considerations argument: was the decision-maker bound by the Defence Act 1903 (Cth) and the regulations made under it to have regard to a certain report about the appellant, in circumstances where the legislative scheme was not prescriptive about considerations which were required to be taken into account? At , the Court said:
The question is whether Lieutenant Colonel Thomae’s report was a relevant consideration for the purposes of Lieutenant Colonel Egan’s decision-making on 8 August 2006, in the sense that he was obliged to consider the report in deciding whether or not to terminate the appellant’s service. Under the Judicial Review Act, the failure to consider a relevant matter is one instance of an improper exercise of power: see s 5(2)(b). This also reflects the common law. Under the Judicial Review Act as at common law, the accepted position is that: (i) the ground of failure to take a relevant consideration into account can only be made out if a decision-maker fails to take into account a consideration he or she is bound to take into account in making the decision; (ii) the considerations a decision-maker is bound to take into account are determined by the statute (in this case, the Defence Act and the Personnel Regulations and instructions made under the Act) conferring the discretion; (iii) if the relevant considerations are not expressly stated, then they must be determined by implication from the subject-matter, scope and purpose of the statute; and (iv) a court will not find that a decision-maker is bound to take a particular matter into account unless an implication to that effect can properly be made: see generally Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J. To succeed, the appellant must show Lieutenant Colonel Egan not only failed to take into account the report prepared by Lieutenant Colonel Thomae, but also that he was bound to take the report into account: Peko-Wallsend 162 CLR at 39.
21 Respectfully, that is an orthodox statement of the operation of the considerations ground in Australian administrative law. It is consistent with more recent statements found in High Court authorities dealing with jurisdictional error. For example, and to go outside the migration area, in Probuild at , Gageler J said, of the original circumstances in which the writ of certiorari would lie:
Of course, any repository of statutory decision-making authority might be shown to have committed a legal error which had the effect of causing the repository to act in excess of, or alternatively to fail to exercise, that authority. For example, an erroneous view of the law might have led the repository to consider and determine a question different from the question which the repository was statutorily authorised to consider and determine, to fail to take into account some statutorily mandated consideration or to take into account some statutorily impermissible consideration. Where an error of law could be shown to have led the repository of statutory decision-making authority into a jurisdictional error of that or some other kind, a purported decision made outside of the decision-making authority could be quashed by a writ of certiorari, enforcement of that purported decision could in any event be restrained by a writ of prohibition, and performance of any statutory duty on the part of the repository to exercise the decision-making authority which in law remained unperformed could be compelled by a writ of mandamus.
22 As his Honour traced the development (and expansion) of the concept of jurisdictional error and the increasing emphasis on the supervisory role of the courts, through Attorney-General (NSW) v Quin  HCA 21; 170 CLR 1; Craig v South Australia  HCA 58; 184 CLR 163 and Enfield City Corporation v Development Assessment Commission  HCA 5; 199 CLR 135, his Honour concluded at -:
The common law presumption of statutory interpretation that has come to be adopted in Australia can therefore be stated as being that a statutory conferral of decision-making authority on a person or body other than a court is conditioned by an implied statutory requirement that the person or body can validly exercise that authority only on a correct understanding of the law applicable to the decision to be made. The presumption is similar in concept and in operation to the common law presumptions of statutory interpretation which support statutory implication of conditions of reasonableness and procedural fairness.
Absent “exclusion by plain words of necessary intendment”, the repository of a statutorily conferred decision-making authority “must proceed by reference to correct legal principles, correctly applied”. To proceed otherwise is for the repository to proceed in contravention of a limitation on the decision-making authority impliedly imposed by the legislature – to commit a jurisdictional error.
23 As his Honour recognised, the source of any dislodgment of this presumption, and these principles, is the statutory framework, not any individual decision.
24 Circling back to Martincevic, at , having found at  that the decision-maker was bound to consider the report, the Full Court said (with my emphasis):
Lieutenant Colonel Egan was obliged to terminate the appellant’s service if he formed the opinion referred to in reg 87(4) of the Personnel Regulations. This was an opinion as to whether: (a) the proposed reason for termination (here, medical unfitness) was established; and (b) the reason was unaffected by a change in circumstances since the termination notice was given to the enlisted member. The report and its findings were capable of constituting a change in circumstances affecting the proposed reason for termination. Certainly, the appellant would have had it so. The appellant’s case at the time of the termination decision was that his medical condition was attributable to his mistreatment at 7 CSSB and would abate if he were no longer subject to the misconduct. In conformity with this, the appellant sought to have a medical opinion on the significance of Lieutenant Colonel Thomae’s report for his medical condition. The fact that Lieutenant Colonel Thomae’s investigation resulted in findings to the effect that the appellant had been the victim of misconduct at 7 CSSB lent some objective support to the appellant’s position. At the least, it was supportive of the basal fact on which it depended. Lieutenant Colonel Egan might have taken a different view of the credibility of the appellant and the nature of his case if he had had regard to Lieutenant Colonel Thomae’s report. Alternatively, Lieutenant Colonel Egan might simply have considered that the findings in the report supported the appellant’s retention, rather than termination. He might also have taken another, altogether different, view of the report. It is not for the Court to guess what view Lieutenant Colonel Egan would have taken of the report and its significance. It is enough that it cannot be said that the failure to have regard to the report was so insignificant that it could not have materially affected the decision: see Peko-Wallsend 162 CLR at 46 per Mason J.
25 Again, in my respectful opinion, this is an orthodox application of what Peko-Wallsend has been understood to stand for.
26 Another example of the treatment of a considerations error is the Full Court decision of Lansen v Minister for Environment and Heritage  FCAFC 189; 174 FCR 14. At , Moore and Lander JJ said:
Because the Minister has failed to take into account a matter which the Minister was bound to take into account, the Minister has constructively failed to exercise the jurisdiction given the Minister under the EPBC Act. A failure to take into account a relevant consideration means that the decision was made in circumstances of jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339-340.
27 The references in Hossain at  to Peko-Wallsend and to Martincevic, as well as to WZARH and Stead, suggests the Court in SZMTA was intending to recognise existing legal principle, not to radically change it. Paragraph  of the plurality reasoning in Hossain is one of the three paragraphs in Hossain said by the majority in SZMTA to be the “principle of construction recently explained”: see SZMTA at . See also  in SZMTA and the reference there to Stead.
28 This, in my respectful opinion, is how a number of decisions of this Court have understood the required approach, whether the error is characterised as a denial of procedural fairness, a failure to take into account a relevant consideration, a failure to perform a statutory task, or asking the wrong question: see - below.
The primary judge’s approach
29 There was a premise to the parties’ arguments on the appeal which does not entirely reflect the approach of the primary judge. It is that the error identified by his Honour was a failure to take into account a relevant consideration. In my opinion his Honour characterised the error in two ways, one flowing from the other: first, non-compliance with Direction 79; second, failing to take account of a consideration made mandatory by that Direction. While I accept those characterisations are correct, the difficulty arises from the view taken by the primary judge of what SZMTA then required. To explain why that is the case, it is necessary first to explain the characterisation of the error, before turning to how the primary judge then applied SZMTA.
The error identified by the primary judge
30 At , the primary judge described the applicant’s case as proceeding from
the unstated premise that a failure to comply with a requirement of the Direction would mean that the Tribunal had failed to undertake its statutory task under s 501CA(4).
31 His Honour referred to my decision in Williams v Minister for Immigration and Border Protection  FCA 674; 226 FCR 112, particularly at -, Burley J’s decision in VKTT v Minister for Home Affairs  FCA 1018 at , and the authorities Burley J referred to, which include a Full Court decision. See also FKP18 v Minister for Immigration and Border Protection  FCA 1555 at .
32 It is important to recall what I said in Williams, which was qualified. At , after noting there are issues of some complexity around the legal character of a s 499 Direction, I said:
[A]lthough in my opinion the character of this Direction is likely to be significant in ascertaining whether a misinterpretation of it could render a decision without jurisdiction, there are several authorities in this Court which, although without analysis of the matters to which I have referred, have assumed a jurisdictional error can arise.
33 It was with that qualification that the statements at - were made:
Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at  per Whitlam and Gyles JJ; Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345 at -; Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358 at  per Katzmann J.
Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance: see Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534; Demillo v Minister for Immigration and Border Protection (2013) 139 ALD 29; Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504.
34 In Minister for Immigration and Citizenship v Obele  FCA 1445; 119 ALD 358 at , Katzmann J described the error in the following way:
It was common ground that a failure to do this by the tribunal would amount to jurisdictional error and this is undoubtedly correct. It would plainly be an error that caused the tribunal’s exercise of the discretion in s 501(2) to seriously miscarry since it is a fundamental feature of the direction’s requirements that the potential for harm to the community be assessed in the light of both the probability of the harm occurring and the nature of that harm. The two-fold nature of this deliberative process is emphasised in both paras 5.2(2) and 10.1(2). Put in more canonical terms, a failure to appreciate this requirement of the direction would amount to an error of law which caused the tribunal to ask itself the wrong question so that its exercise or purported exercise of power was thereby affected. See Craig v South Australia (1995) 184 CLR 163 at 179; 131 ALR 595 at 602; 39 ALD 193 at 199.
35 In other words, not as a considerations argument.
36 In Uelese v Minister for Immigration and Citizenship  FCAFC 86; 60 AAR 534 at , the Full Court said:
In our opinion, there is no irreconcilable conflict between the relevant provisions of the Act here. By virtue of s 499 and the text of Direction 55, in conducting a review of a s 501 visa cancellation decision, the AAT is obliged in relevant circumstances to consider the best interests of minor children as a primary consideration in carrying out the balancing exercise described in Direction 55. But that obligation is subject to certain qualifications, including the procedural qualifications and constraints imposed by various provisions in s 500. Section 500(6H) is one of those constraints.
37 In Uelese in the High Court (Uelese v Minister for Immigration and Border Protection  HCA 15; 256 CLR 203 at ), the High Court put the result of an exercise of power otherwise than in compliance with a Direction made under s 499 beyond doubt (with my emphasis):
Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her “case”.
38 The Minister had argued (as summarised at ) that
the paucity of evidence about the appellant’s two youngest children in consequence of the way the appellant’s case was presented meant that the Tribunal could not be satisfied one way or the other as to where the best interests of the appellant’s children lay.
39 The Court rejected this, finding at  that the paucity of evidence was due not to the unavailability of material evidence but to the Tribunal’s failure “to make even the most cursory inquiry”, itself a product of the Tribunal’s failure to comply with the Direction.
40 At , the Court briefly considered the nature of the Tribunal’s duty to inquire. At , the Court then reached the following conclusion (with my emphasis):
It is not necessary to canvass these possibilities further because the issue in this case is not whether the Tribunal failed to go far enough to discharge its obligation to conduct its review having regard to the interests of all the appellant’s children; rather, the point is that the Tribunal, by reason of its misunderstanding of the effect of s 500(6H), failed to address one of the primary considerations affecting the decision required of it. It failed to conduct the review required by the Act, and thereby fell into jurisdictional error.
41 This decision pre-dates SZMTA, but there is nothing in SZMTA to suggest the Court intended to overrule this approach. Compliance with the Direction was what conditioned the power of the Tribunal; and a mandatory aspect of that compliance was, the High Court held, to “take into account the interests of any minor children of which it was aware in determining [the appellant’s] application for review”. Thus, it was the terms of the Direction as applicable to the cancellation power in s 501(2) of the Act, coupled with s 499(2A), which led to a construction of the legislative scheme in the Migration Act as requiring the Tribunal to take that matter into account.
42 In this matter, at , the primary judge did not describe the error as a considerations error, but described it in terms much closer to those used by the High Court in Uelese (and by Katzmann J in Obele) That is apparent from the remainder of the primary judge’s conclusions at  (with my emphasis):
The Direction does not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure: see Suleiman v Minister for Immigration and Border Protection  FCA 594 at . The Direction imposes requirements that must be given effect in order for there to be a valid decision made under s 501CA(4).
43 Suleiman v Minister for Immigration and Border Protection  FCA 594; 74 AAR 545 is another decision of the primary judge. His Honour’s description in the last sentence of  is suggestive of the Direction as an inviolable condition imposed on the exercise of power by (relevantly here) the Tribunal. Or, to put it in a way closer to Obele, a part of the statutory task of the Tribunal which, if not performed correctly, could cause the Tribunal to ask itself the wrong question.
44 As I indicated in Williams, there may be other ways to approach Directions made under s 499 of the Act. To date, those matters do not seem to have come before this Court.
45 For present purposes, what matters is that at , and subject to his subsequent observations, the primary judge took as his starting point that compliance with the Direction conditioned the power of the Tribunal. That, with respect, on the state of the current authorities, is correct. In some situations, an aspect of the Direction may be described as a relevant consideration (Uelese); in others, the content of the Direction may be described as framing part of the required statutory task (Obele).
46 From , the primary judge commenced an analysis based on a premise that SZMTA may have altered the situation as it existed on previous authorities:
However, these cases must be viewed in the context of the decision by the High Court in Minister for Immigration and Border Protection v SZMTA  HCA 3.
47 At , his Honour said (with my emphasis):
Keeping in mind that the Court should not intrude into the exercise of the statutory function entrusted to the Tribunal, if the Court was to conclude on the evidence that a failure to comply with the Direction was of ‘such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result’ then there was no jurisdictional error: at .
48 And at , the primary judge concluded:
In short, only a material failure by the Tribunal to comply with the Direction in making its decision could amount to jurisdictional error.
49 At  in SZMTA , and in using the phrase “marginal significance”, the majority was expressly considering the failure to take particular documents and information into account and was describing the character of the documents themselves (with my emphasis):
The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.
50 That is quite a different question to the one posed by the primary judge, as are the propositions at  and , which were whether non-compliance with the Direction was of marginal significance. Those formulations unnecessarily elevate the concept of “materiality”. As I explained earlier, in my opinion, the way the High Court used the concept can be seen as in substance reflecting existing law. That is more evident from the majority’s reasons from  onwards, and in particular in those parts of their reasons where they apply the principles to SZMTA (the other two cases being decided on different bases). In those passages, the language the Court uses is:
“whether its decision could realistically have been different” (at )
“could not realistically have made any difference to the Tribunal’s decision” (at )
“not realistic to conclude that yet another communication of that nature could have made any difference to the Tribunal’s evaluation” (at )
“documents and information were of such marginal significance that the denial could not realistically have made any difference to the result” (at )
51 In my respectful opinion, that is no different in substance to the approach set out by Gageler and Gordon JJ in WZARH at , where their Honours were also dealing with a breach of procedural fairness:
Such a breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome”.
52 This is the passage cited by the majority in SZMTA at .
53 However, all this is in the context of a denial of procedural fairness, not any other kind of condition on the power of the decision-maker.
54 Therefore, with respect, I do not consider the primary judge posed the correct question for himself in this part of his reasons.
Approach to materiality
55 At , the primary judge then described the approach a reviewing court should take. In that paragraph his Honour refers to a number of recent decisions, including the Full Court’s decision in Khalil v Minister for Home Affairs  FCAFC 151; 271 FCR 326 at , where the Full Court said:
However, the Act is not to be interpreted to deny legal force to the decision unless the resulting breach of the limitations on the Tribunal’s powers was material to the decision: Hossain at -; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at  (Bell, Gageler and Keane JJ, but see Nettle and Gordon JJ dissenting on this point). A breach is material to a decision only if compliance could realistically have resulted in a different decision. That is an ordinary question of fact on which the applicant for review bears the onus of proof, and which may be determined from inferences drawn from the evidence: SZMTA at -.
56 At , by reference to the Full Court decision in Minister for Immigration and Border Protection v CPA16  FCAFC 40; 268 FCR 379 at , the primary judge emphasised the correct approach was to assess the matter as one of possibility (“could”), not likelihood.
Application to the appellant’s case
57 At , the primary judge referred to the passages from the High Court in Uelese, noting:
[T]he inquisitorial nature of the Tribunal’s role remains and matters relevant to its decision making are not confined to those matters raised by the applicant for review in material presented to the Tribunal.
58 At -, the primary judge referred to the line of authority concerning the failure of a Tribunal to mention a matter in its reasons, and the circumstances in which that may be because it saw the matter as having no real significance, this approach having been identified as not involving in any jurisdictional error.
59 At , the primary judge noted the Minister’s concession in argument before the Court at first instance:
On the present application, the Minister did not contend that this was a case where the effects upon the applicant’s partner and adult children were not materially relevant or that the Tribunal may have formed that view. Rather, it was conceded that those matters were relevant and needed to be considered. The Minister’s submissions were to the effect that the Tribunal’s reasons showed that such matters had been considered by the Tribunal.
60 In the same paragraph, the primary judge concluded:
For the following reasons, I do not accept that submission.
61 In other words, there was a concession of “materiality” before the primary judge from the Minister. And his Honour found at  that the Tribunal’s reasons, in contrast to the delegate’s, did
not express [the relevant matters in the Direction] as [distinct considerations] nor [did] they deal in any way with the effect on the applicant’s family members.
62 This led the primary judge to find at :
In all the circumstances, I infer that the Tribunal 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. Rather, the Tribunal only took account of the extent of the applicant’s ties to those people and thereby confined its consideration to the effects upon him.
63 Despite having put the matters differently to the primary judge, on appeal the Minister accepted this finding, and there was no cross-appeal or notice of contention. It is a finding of non-compliance with the terms of the Direction, by failing to take into account a consideration the Direction required the Tribunal to take into account; namely, the effects of the visa cancellation on the appellant’s partner and his adult children. As I have noted above, there is a clear line of authority which has characterised such a failure as a jurisdictional error, including Uelese in the High Court.
64 At , the primary judge framed the next issue in the same terms he had earlier, and in my respectful opinion, erroneously (with my emphasis):
[I]t is necessary to consider whether the failure by the Tribunal to take account of the effect on the applicant’s partner and his adult children as required by the Direction was a material failure to comply with the Direction.
65 In the same paragraph, the primary judge then found, in order to deal with this issue, it was
necessary to consider what was required by the Direction as well as the overall reasoning by the Tribunal as to why it affirmed the decision not to revoke the cancellation of the applicant’s visa.
66 It was at this point the primary judge then examined the Tribunal’s fact-finding and reasoning process, and the material before the Tribunal, in detail. At -, the primary judge stated:
The Tribunal’s reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation. Further, the circumstances of the applicant’s offending (even after a previous cancellation of his visa being revoked) and the high likelihood that he would commit further serious offences weighed significantly against revoking the cancellation of his visa. The connections that the applicant had with minor children and other family members were not sufficient to outweigh those matters. Under the terms of the Direction, these three primary considerations generally were to be given greater weight than the other considerations. There was no indication in the Tribunal’s reasons that there were any ‘other considerations’ that should be given greater weight than the primary considerations or that there was material that might have led the Tribunal to that view (although the possibility was addressed).
The evidence of the effect upon the applicant’s two adult children and the applicant’s partner if he was removed from Australia did not identify any significant financial or other dependence on the applicant. The applicant’s offending meant that he had been separated from them for considerable periods. As to the evidence from the applicant’s partner that she suffered from schizophrenia and paranoia, there was no reference to any material indicating any role that the applicant played in the applicant’s partner managing or dealing with her mental illness. In short, the applicant did not seek to develop any contention based upon the material before the Tribunal as to how that material, if considered, might have led the Tribunal to reach a different conclusion.
67 The Minister accepted during oral argument that in these passages the primary judge made findings of fact not made by the Tribunal.
68 The explanation for - was given by the primary judge at :
As reasoned in Hossain v Minister for Immigration and Border Protection  HCA 34, where a statutory requirement must be met in order for there to be a valid exercise of power then it is to be construed as providing for invalidity only where there is a material breach: at - (Kiefel CJ, Gageler and Keane JJ). Therefore, the inquiry is a backward looking one concerned with whether there has been an invalidating material failure to comply with a condition to the valid exercise of power in the particular case rather than a forward looking inquiry as to whether future compliance with the condition might affect a future decision made by way of fresh exercise of the power by any decision-maker acting within the bounds of reasonableness.
69 In my respectful opinion, drawing a binary comparison such as “backward looking” and “forward looking” tends to distract. In truth, neither phrase aptly describes the exercise. Of course, the supervisory court is examining an existing set of reasons for a decision made in the past, and a collection of evidence as adduced in the past. However, where a legal error is identified (and, here, admitted by the Minister), those existing reasons, and the specific collection of evidence, occurred as a product of the error. That is why the Court would commence from a false premise if it confined itself to those matters, and asked what would be a question with an entirely subjective purpose – would that individual Tribunal member have changed her or his mind if she or he had acted lawfully?
70 That in substance is the question the primary judge asked: would this particular Tribunal member, having made the findings he did, have changed his mind if he had looked at the effect of the visa cancellation on the appellant’s partner and his adult children? In my opinion, it is clear the primary judge considered “would” or “could” was not the issue here, because the Tribunal had expressed such firm views about the nature of the appellant’s offending. The primary judge focused on the Tribunal’s subjective state of mind in terms of its level of persuasion about the appellant’s previous offending. His Honour was in substance saying 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.
71 As Bromwich J and I said in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 66 at , where that reasoning leads to is the proposition that where there are emphatically adverse factual findings, no matter how egregious the legal error, the error is unlikely to be described as jurisdictional. Such 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.
72 In my respectful opinion, the approach taken in the authorities demonstrates that is not the reconstruction which is required, and it is to read the majority’s reasons in SZMTA too broadly and literally as mandating such an approach to the kind of error in issue on this appeal. With respect, the primary judge’s approach introduces precisely the danger of which the High Court warned in SZMTA, and to which the Full Court referred in Martincevic. It is not that everything else stays the same and the supervising court injects a consideration which was unlawfully omitted, measuring the effect only by reference to the subjective findings made by the Tribunal. Rather, the whole task is to be conceived as performed according to law – all at once – taking into account what has been unlawfully left out, or misconceived. And the supervising court assumes the Tribunal acts with an open mind, capable of persuasion, not a pre-existing view, set against the visa applicant because of other aspects of its former reasoning. That is why 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” (see Martincevic at ) what the Tribunal, properly instructed and applying an open mind, including possibly the consideration of further evidence and a different line of inquiry about the appellant’s partner and adult children, might have decided.
73 If a reviewing court is persuaded that, despite the jurisdictional error, the visa applicant would inevitably have received the same outcome on review, the discretion to refuse relief has work to do in such circumstances: see SZMTA at , .
74 In my opinion, it was clear there was a body of evidence before the Tribunal which it was required to assess in order to determine the effect of the visa cancellation on the appellant’s partner and his two adult children. That was a mandatory part of its task on review, by reason of the terms of Direction 79 and s 499(2A). That body of evidence is set out at - of the appellant’s submissions on the appeal. It included direct evidence from the appellant, his partner, and the two adult children, including oral evidence to the Tribunal. What additional questions might have been asked, what weight might have been given to what was said, how the appellant’s partner’s severe mental illness may have been weighed by the Tribunal, are not matters the Court can investigate and decide, nor should it speculate upon them. Where, as the appellant submitted, the Direction requires the Tribunal to evaluate all the considerations, and decide what weight to attribute to them, in my opinion it is correct to say the Tribunal’s failure to comply with cl 14.2(1)(b) of the Direction, by its failure to evaluate the effects of the visa cancellation on the appellant’s partner and adult children, deprived the appellant of the possibility of different outcome.
75 It is not fanciful, or implausible, that had it brought an independent mind to the interests of the appellant’s partner and his children (perhaps especially his partner, given her severe mental health issues), the Tribunal could, or might, have been persuaded that those factors, combined with others it found weighed in favour of revocation, were sufficient to revoke the visa cancellation. In my respectful opinion, to find otherwise requires the Court to put itself in the positon of the Tribunal and to conduct a weighing exercise itself, without any fresh consideration by the Tribunal of the evidence that was not evaluated according to law.
76 The circumstances of this judicial review are no different in substance to the circumstances of Martincevic, Lansen or any of the cases to which I refer below. I do not understand SZMTA to mean that those decisions should now be regarded as wrongly decided. In my respectful opinion, they lead to the conclusion that the appeal should be allowed.
Other recent decisions
77 There are a number of other decisions after SZMTA which adopt an approach consistent with the understanding I have set out above. In SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCA 779 at , Allsop CJ expressed the correct approach in these terms (with my emphasis):
The error concerned important evidence going to a central issue in the exercise of jurisdiction. The error was material. A proper reading of the evidence by a fair and open-minded member could have made a difference to the decision: Hossain 264 CLR at 134–135 –; Minister for Immigration and Border Protection v SZMTA  HCA 3; 264 CLR 421 at 433 ; and EVS17 v Minister for Immigration and Border Protection  FCAFC 20; 268 FCR 299 at 308–310 –. The evidence had to be confronted; it could have sown doubt, by its clarity, in the consistent certainty of the credibility findings. No prediction of irrelevance of the evidence of Dr Lee, properly understood, could be made to the consideration of a fair and open-minded fact-finder.
78 The Full Court in EVS17 v Minister for Immigration and Border Protection  FCAFC 20; 268 FCR 299, in an appeal dealing with a failure by the Immigration Assessment Authority to consider a set of documents provided by the visa applicant, described the materiality analysis in the following terms at :
Having regard to those considerations, the requirements of s 473CB(1) of the Act by which the Secretary must provide the material referred to therein and the nature of the review prescribed by Pt 7AA, the test for which the Minister contends is inapt. It imposes too high a bar. Given the statutory purpose of a fair hearing, a lower threshold of materiality is called for. That is, one that considers whether the documents that were not provided by the Secretary could have resulted in the making of a different decision: see Hossain at . In other words, there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Pt 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review. Whether that is so should be considered by reference to an applicant’s claims and the Authority’s reasons.
79 The Full Court then applied that approach to the facts before it. What follows is a longer extract (from -), but necessary because the language illustrates how objectively the materiality approach is expressed, rather than taking the existing findings of the decision-maker, especially the existing weight given to various aspect of the evidence, as the only term of reference:
For the following reasons we have come to a different conclusion to that urged on the Court by the Minister about the effect of the Medical Documents.
First, the Medical Documents establish that the appellant presented with an issue to his back and right foot. They also describe his symptoms as including loss of sensation in part of his right leg, walking off balance, foot drop and mild pain in the lumbar region on deep palpation. The appellant was referred for further tests.
Secondly, as the Minister submitted, the appellant’s claim to have been hit with rifle butts in March 2009 may have been supported and corroborated by the Medical Documents. That claim was rejected by the Authority at  of its reasons. The Minister said that the Authority rejected that claim because, as it explained at  of its reasons, the appellant “made no mention of these significant incidents in his arrival interview or SHEV application”. However, given their content and notwithstanding the reason given by the Authority at  of its decision record for rejecting that claim, the Medical Documents could have made a difference to the Authority’s consideration of that claim. Those documents could have, when considered with the balance of the material before the Authority, led it to a different conclusion. It was for the Authority to consider the appellant’s claims based on its evaluation of the evidence before it, without hearing from the appellant. Critically, contrary to the Authority’s belief and its statement at  of its reasons, it did not have “the totality of [the appellant’s] evidence” before it when it reached its conclusion. The Authority may have wanted to invoke s 473DC(3) and ask for some explanation of the documents. Whilst the documents themselves may not be new information (having been before the decision-maker), an explanation of them, in particular placing them in proper context, would be new information.
Thirdly, contrary to the Minister’s submissions, whether the Medical Documents may be corroborative of the appellant’s claims (other than his claim to have been hit with rifle butts in March 2009) is an open question which once again requires an evaluative judgment on the part of the Authority based on the evidence before it. That being so, the Medical Documents could have affected the way in which the Authority might view the appellant’s other claims.
Fourthly, we accept that the Medical Documents taken at their highest could only establish that the appellant suffered an injury in the past and not that the injury was suffered at the hands of the SLA. But acceptance of the former may result in the Authority taking a different view of the cause of the injury and, indeed, accepting the appellant’s version of events.
The Medical Documents could have affected the outcome of the Authority’s review given their content, the claims made by the appellant and the reasons given by the Authority for rejecting those claims. That is, they could have led to the Authority drawing different conclusions in relation to some of the appellant’s claims which may, in turn, have affected the ultimate conclusion reached by the Authority. Here, there was no independent basis on which the Authority’s decision might otherwise have been upheld such that the breach of s 473CB(1)(b) could have made no difference to the outcome, namely the Authority’s decision to affirm the delegate’s decision: cf Hossain at .
80 The same approach was adopted by another Full Court in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 222 at , referring to EVS17. In that case, the Full Court held:
Had the Authority received the Human Rights Documents from the Secretary, they would have been considered and the Authority may well have come to a different conclusion on the appellant’s credibility and his claims more generally. In these circumstances, the Secretary’s breach of s 473CB(1)(c) had the consequence that the Authority failed to carry out the review required by Pt 7AA.
81 Degning v Minister for Home Affairs  FCAFC 67; 270 FCR 451 was a visa cancellation case. Allsop CJ (Collier J agreeing, Thawley J dissenting on this point) held that the appellant had been denied procedural fairness in relation to the way statements on an incoming passenger card had been used as part of the Minister’s reasons, in circumstances where many other reasons were given by the Minister for the visa cancellation, including the nature of the appellant’s sexual offending and his risk of re-offending. Nevertheless, the Chief Justice found at -:
There was in my view a failure to afford Mr Degning procedural fairness. It was, in my view, unfair not to direct Mr Degning to this issue. The common law requirement of procedural fairness or natural justice is rooted in the common law’s inhering demand for fairness in the way power is exercised. Relief will ordinarily follow a denial of procedural fairness: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at  (Gleeson CJ),  (Gaudron and Gummow JJ),  (Hayne J), - (Kirby J),  (Callinan J). That does not mean that relief is not discretionary: Aala. But the relief is usual because a finding of an absence of procedural fairness is based on the procedure being unfair. An “arid and technical” approach to unfairness and approach to unfairness not based on the practical nature of fairness is to be disapproved: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at  and  (Gleeson CJ).
Whilst it is necessary for the applicant to show that the process has fallen short of a standard of fairness in all the circumstances, it is not necessarily the case that evidence must be led about what the applicant would have done had the procedure been fair. Here for instance, I see no justification for concluding that Mr Degning had to prove that he did not understand that the passenger cards were related to a proposition that he had a disregard for the law and that that was relevant to the question whether he posed a risk of re-offending for sexual offences. Given the gravity of the consequence of the decision for him, and the nature of the representations that he did make, I would infer that he would have said whatever he could have said about the cards, even, if it be the case, accepting some dishonesty. Human experience and plain common sense tells one that he would have addressed it. There is no basis to think that it could have been some tactical decision. Being prepared to draw the inference that Mr Degning did not understand the issue for which the passenger cards were to be or were used, I am persuaded that the failure to afford him procedural fairness denied him an opportunity to put submissions on a topic of relevance to the Minister’s consideration. There is no reason to think that this could not have made a difference to such a difficult decision, and one where there was accepted to be a low risk of re-offending. I do not consider that Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 requires any different conclusion.
82 In AEM20 v Minister for Home Affairs  FCA 623 at , Katzmann J said:
As in Omar (see ), if the Minister had engaged in an active intellectual process with the significant matters raised by the applicant on the increased risk of harm he would face in Afghanistan, he could have come to a different conclusion. One cannot assume that the Minister approached the decision with a closed mind. For this reason, the error is material. See also Chamoun v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 66 at  (Mortimer and Bromwich JJ).
83 In Chamoun, in considering submissions put on that appeal about materiality, Bromwich J and I held at  that
the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA  HCA 3; 364 CLR 421 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.
84 We also observed at -:
Where questions of discretion and weight are involved, it may be difficult for a reviewing court to conclude the outcome could not realistically have been different without straying into performing the task of considering, first, whether the power to seek further information should be exercised, or second, how any information provided should be weighed in the cancellation decision. Those are not matters for a reviewing court and it is important that any assessment of materiality on judicial review not stray into those areas.
On judicial review, where there is an identification of legal error and an assessment of whether it was an error which should be characterised as jurisdictional, there is a significant element of reconstruction involved. The reviewing court is asking: what if the repository of the power had (relevantly here) properly understood the nature of his power? That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision-maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error. It cannot be used as proof of immateriality.
85 In DQM18 v Minister for Home Affairs  FCAFC 110 at -, Bromberg J and I said:
Where questions of weight are involved, and a representation raised by a person is a matter of real and not marginal or fanciful relevance to the statutory task, this Court on review is unlikely to be able to conclude one way or the other what weight might have been given to that representation in the discharge of the statutory task, had the representation been approached rationally and on the basis of probative material. A reviewing court is unlikely to be able to conclude the outcome could not have been different, which is in substance the exercise the Minister asks the Court to perform.
Such an exercise is likely to involve an adjudication on the merits of the exercise of power under review and to also involve the court speculating about the decision-maker’s state of mind, both of which this Court cannot and should not do. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and SZMTA 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.
Further, the exercise to be undertaken by the reviewing court is not to be undertaken by reference to the subjective conclusions reached by the decision-maker herself or himself as part of the impugned decision. Otherwise, where there are emphatic adverse findings in a particular decision, then even egregious breaches of an “inviolable” limitation (eg obvious misconstruction of a statute; obvious denial of procedural fairness) would be held not to be an error of a jurisdictional kind because the subjective state of mind of the particular decision-maker, imputed by the Court on the basis of the rest of the decision-maker’s reasons, would prevail in the materiality analysis. The proposition is not that a decision-maker is free to contravene an inviolable limitation on her or his exercise of power so long as she or he makes her or his findings so emphatic that a reviewing court can say that no matter what the error, the decision-maker in question would not have changed her or his mind. That would effectively immunise decisions from scrutiny on judicial review. We do not consider that was the intent of the majority’s statement of principle in SZMTA, for that would indeed overthrow a considerable amount of the jurisprudence of that Court itself.
86 In DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs  FCAFC 72 at -, McKerracher and White JJ and I said:
Adapting the approach taken by the Full Court in Nguyen v Minister for Home Affairs  FCAFC 128 at , in our opinion it is clear that the Authority’s overreaching in its fact finding, going beyond what the material before it was capable of proving, meant that the Authority’s review miscarried. The materiality is that, having made a factual finding unsupported by any evidence, the Authority did not deal at all with the claim as put to it, but instead appeared to assume its (erroneous) finding justified no further inquiry about what would happen to the children on return, in particular the fourth and fifth appellants, who had also departed Sri Lanka unlawfully.
This is not a situation where there was an “independent” reason supporting the decision of the Authority to affirm the decision under review: cf Hossain v Minister for Immigration and Border Protection  HCA 34; 264 CLR 123, and Nguyen at . The appellants’ claims to fear harm as a family of five returning failed asylum seekers, four of whom departed illegally (and without passports), was one of their central claims for protection. It was expressed by the first appellant, but clearly on behalf of the entire family.
The purpose of the adjective “realistic” in the phrase “realistic possibility”, now forming part of the statements of principle by the majority in the High Court in Hossain and in SZMTA is, in our opinion, employed to distinguish between a possibility that is fanciful or improbable and one which is more than that. In the present circumstances, we are satisfied that the appellants were deprived of a realistic possibility of a different outcome on the review before the Authority. The Authority’s overreaching in its fact finding led it to fail to deal with the serious question of what was going to happen to the first and second appellants’ children when the entire family of five arrived back in Sri Lanka as failed asylum seekers, four of whom had left the country illegally.
87 In my respectful opinion, these decisions all illustrate that the approach to the concept of “materiality” outlined in SZMTA, as it has been applied, is not as different from the considerable body of case law existing prior to that decision as appears to have been supposed by the primary judge. These decisions do not support the fact-finding approach taken by the primary judge, especially at - of his Honour’s reasons.
88 The appeal should be allowed, the primary judge’s decision set aside, and in its place, orders should be made setting aside the Tribunal’s decision and remitting the matter for consideration according to law. As I understand it, the parties proceeded on the basis that costs should follow the event.
REASONS FOR JUDGMENT
BANKS-SMITH & JACKSON JJ:
89 This is an appeal from a decision of a single judge of this court exercising original jurisdiction under s 476A of the Migration Act 1958 (Cth) to review a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made under s 501CA(4) of the Act not to revoke the mandatory cancellation of a visa pursuant to which the appellant had lived in Australia.
90 The primary judge found that the Tribunal erred in failing to consider a matter which it was required to take into account, namely the impact of non-revocation on the appellant's partner and two adult children. That requirement arose out of a ministerial direction made under s 499(1) of the Migration Act, Ministerial Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79). Section 499(2A) of the Act provides that a person or body must comply with such a direction. There was no issue between the parties that the Tribunal was a body of that kind for the purposes of the decision it made, and that if it failed to comply with the direction, that was capable of being a jurisdictional error.
91 Nevertheless, the primary judge found that the Tribunal's failure to take the relevant matter into account was not a jurisdictional error, because it was not material to the Tribunal's decision. The sole ground of appeal challenges the finding on the question of materiality. This raises questions about the standard of materiality that must be applied in relation to a failure to have regard to a consideration which is made mandatory under the Migration Act, and about whether the primary judge misapplied that standard by determining the merits of the decision that was under judicial review.
92 For the following reasons, the primary judge did not fall into error in either respect, and the appeal will be dismissed.
The Tribunal's decision
93 The appellant is a national of Mozambique. He was 43 years old at the time of the Tribunal's decision and had lived in Australia since 1995. From late 1995 until 2017 he committed a large number of criminal offences. These included assault, sexual penetration without consent, possession of methylamphetamine, stealing, driving under the influence of alcohol and other traffic offences, failing to comply with offender reporting obligations, breaches of suspended sentence, breach of bail and breach of violence restraining orders. The victim of the offence of sexual penetration without consent was a 14-year-old girl.
94 It was not disputed that the appellant did not pass the character test for the purposes of s 501 of the Act, which required the Minister to cancel his visa. The appellant made representations to the Minister under s 501CA of the Act about the revocation of the cancellation of the visa. Given that he did not pass the character test, the question before the delegate and the Tribunal was whether there was there was 'another reason why the original decision should be revoked': s 501CA(4)(b)(ii).
95 Part C of Direction 79 sets out a number of matters which the Tribunal was required to take into account. The Tribunal's reasons for decision were structured by reference to those matters. Paragraph 13(2) of the direction required the Tribunal to address certain primary considerations. In relation to the first of these, the protection of the Australian community from criminal or other serious conduct, the Tribunal found that the appellant's conduct was very serious and that there was a high likelihood that he would engage in further criminal or other serious conduct if the cancellation of the visa were to be revoked. In relation to the second primary consideration, the best interests of minor children in Australia, the appellant had two children under the age of 18 who engaged that consideration. The Tribunal found that it weighed in favour of revocation, but the weight to be given to it was not significant in comparison with the other considerations. In relation to the third primary consideration, the Tribunal found that the expectations of the Australian community were that the appellant should not hold a visa.
96 Turning to other considerations which were mandatory under Direction 79, where relevant, the Tribunal found that the appellant was not owed non-refoulement obligations, and even if he was they were outweighed by the seriousness of his behaviour. While it appears from the treatment of that subject in the body of the Tribunal's reasons that it found that this consideration was not relevant, in the conclusion at the end of its reasons it nevertheless said that the consideration weighed in favour of revocation. The Tribunal also found that the appellant faced potentially significant impediments to establishing himself if he returned to Mozambique, and that this weighed in favour of revocation of cancellation of the visa.
97 The mandatory consideration in relation to which the primary judge found the Tribunal erred was the one arising by reason of paragraph 14(1)(b) and paragraph 14.2 of Direction 79: 'strength, nature and duration of ties to Australia'. The appellant had a partner, and two other children who, as adults, were not the subject of consideration under the heading of the best interests of minor children. While the Tribunal acknowledged that the appellant had lived in Australia for 24 years and that his partner and four children lived here, its brief reasons under this heading evidenced no consideration of the strength, duration and nature of the appellant's links with them or the effect of non-revocation on them as members of his immediate family. The Minister had conceded before the Tribunal that the Tribunal could accept that the consideration weighed in favour of revocation, albeit he also submitted that it should be given limited weight and that it was not sufficiently compelling to outweigh primary considerations which weighed heavily against revocation. The Tribunal agreed that the consideration weighed in favour of revocation but seemed, implicitly, to find that it should be given limited weight.
98 Given its views about the significant weight to be given to the primary considerations of the protection of the Australian community and the expectations of the community, and the relatively insignificant weight it gave to the remaining consideration of the best interests of minor children, the Tribunal concluded that the primary considerations outweighed the other considerations which were in favour of revocation (non-refoulement obligations, strength, nature and duration of ties, and extent of impediments). It therefore decided that there was no 'other reason' why the cancellation of the visa should be revoked.
The primary judge's reasoning on materiality
99 The primary judge found that the Tribunal's reasons manifested a focus on the appellant's ties with Australia, and demonstrated no separate consideration of the effect of non-revocation of the cancellation of the visa on the appellant's partner and children. That was a failure to comply with Direction 79. The Minister does not challenge this finding by any notice of contention in this appeal.
100 The primary judge referred (at ) to cases in which a failure to comply with a ministerial direction under s 499 of the Migration Act was held to amount to jurisdictional error and said that those cases needed to be viewed in the context of Minister for Immigration and Border Protection v SZMTA  HCA 3; (2019) 264 CLR 421. His Honour summarised the effect of that decision as follows (at -):
In SZMTA the majority (Bell, Gageler and Keane JJ) held that a breach of a statutory provision which conditioned the performance of the overarching duty of the Tribunal to conduct a review only operated to deny legal force to the decision of the Tribunal if that breach was material: at . Without materiality there was no jurisdictional error: at . A breach was only material if there was a realistic possibility that compliance could have resulted in a different decision: at , . Whether there was such a realistic possibility was a matter to be adjudged on the evidence on the application.
To determine whether there was a material breach of the requirement that conditioned the valid exercise of power, it was necessary to consider how the Tribunal in fact acted: at . For present purposes, the requirement is compliance with the Direction. Keeping in mind that the Court should not intrude into the exercise of the statutory function entrusted to the Tribunal, if the Court was to conclude on the evidence that a failure to comply with the Direction was of 'such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result' then there was no jurisdictional error: at .
101 His Honour held (at ) that the issue of materiality raised a question of fact in respect of which the applicant bears the onus of proof. Whether an error is material may be inferred from the evidence, including the decision-making process. His Honour held:
Where the error concerns a matter that was not considered, the reasoning process of the decision-maker may be evaluated in forming a view as to whether there was a realistic possibility that the matter, if considered, may have resulted in a successful outcome: Ogawa at - (Davies, Rangiah and Steward JJ); and Khalil at -.
102 Quoting from Minister for Immigration and Border Protection v CPA16  FCAFC 40; (2019) 268 FCR 379 at , his Honour noted (at ) that the test as to materiality does not require an assessment of the likelihood of the omitted material affecting the decision, but a determination as to whether the material omitted from review could realistically have resulted in the decision-maker making a different decision.
103 After setting out what Direction 79 required the Tribunal to consider, the primary judge then (at -) summarised the Tribunal's reasoning as to the weight to be given to the various primary and relevant other considerations, and the balancing of those considerations which the Tribunal conducted at the end of its reasons. As to those matters, his Honour observed (at ):
The Tribunal's reasons provide no indication that matters were finely balanced. On the contrary, protection of the Australian community weighed heavily against revocation. Further, the circumstances of the applicant's offending (even after a previous cancellation of his visa being revoked) and the high likelihood that he would commit further serious offences weighed significantly against revoking the cancellation of his visa. The connections that the applicant had with minor children and other family members were not sufficient to outweigh those matters. Under the terms of the Direction, these three primary considerations generally were to be given greater weight than the other considerations. There was no indication in the Tribunal's reasons that there were any 'other considerations' that should be given greater weight than the primary considerations or that there was material that might have led the Tribunal to that view (although the possibility was addressed).
104 His Honour also (at ) considered the material that was before the Tribunal relevant to the effect that the appellant's removal from Australia would have on his adult children and his partner. His Honour found that it did not identify any significant financial or other dependence on the appellant. There was evidence that the appellant's partner suffered from schizophrenia and paranoia, but there was no material indicating that the appellant played any role in managing or dealing with those illnesses. The appellant did not contend, based upon the material before the Tribunal, how that material, if considered, might have led the Tribunal to reach a different conclusion.
105 As an ordinary question of fact on which the appellant bore the onus, the appellant had not persuaded the primary judge that consideration of the effect of non-revocation on the appellant's family could realistically have resulted in a different decision. His Honour (at -) found it significant that:
… the majority in SZMTA referred to 'the curial determination both of how the Tribunal in fact acted … and whether its decision could realistically have been different if the relevant breach had not occurred' (emphasis added): at .
As reasoned in Hossain v Minister for Immigration and Border Protection  HCA 34, where a statutory requirement must be met in order for there to be a valid exercise of power then it is to be construed as providing for invalidity only where there is a material breach: at - (Kiefel CJ, Gageler and Keane JJ). Therefore, the inquiry is a backward looking one concerned with whether there has been an invalidating material failure to comply with a condition to the valid exercise of power in the particular case rather than a forward looking inquiry as to whether future compliance with the condition might affect a future decision made by way of fresh exercise of the power by any decision-maker acting within the bounds of reasonableness.
Having 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, it has not been shown that there has been a material failure to comply with the Direction on the basis of the matters raised by ground 1. It follows that ground 1 should not be upheld.
The ground of the appeal and the issues raised
107 The sole ground of appeal simply alleges that the primary judge erred in finding that the Tribunal's failure to consider the effect of non-revocation on the appellant's partner and adult children was not material and not a jurisdictional error.
108 As will be explained, the way counsel for the appellant advanced the ground in submissions gives rise to two main issues: whether the primary judge applied the correct standard of materiality; and, if so, whether his Honour misapplied the standard, so as to assess the merits of the matter before the Tribunal. We will deal with each of those issues in turn.
The standard of materiality
109 The written submissions filed on behalf of the appellant summarised the applicable law in a way which, for the most part, closely resembled the summary of the principles which the primary judge gave. However counsel for the appellant relied in particular on the following passage from Hossain v Minister for Immigration and Border Protection  HCA 34; (2018) 264 CLR 123 (at , footnotes removed):
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of 'the possibility of a successful outcome', or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was 'so insignificant that the failure to take it into account could not have materially affected' the decision that was made.
The last proposition, about failure to take into account a mandatory consideration, is footnoted with a reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
110 The appellant's argument then referred to how in SZMTA, the principle is stated in terms of whether there is 'a realistic possibility that the Tribunal's decision could have been different' (emphasis added, see e.g. at -) and queried whether this was a higher threshold for materiality than that expounded in Hossain. The submissions drew a contrast between the situation in Hossain and the situation in the SZMTA appeal itself (the SZMTA decision also addressed two other appeals which counsel submitted did not require any departure from the standard of materiality in Hossain). In Hossain, a favourable outcome for the applicant was not possible because, the High Court found, there was an independent ground that required refusal of Mr Hossain's visa application even if the error in question had not been made. But in SZMTA, a document favourable to the respondent SZMTA had been left out of consideration, and it could not be said that a different outcome was impossible. Nevertheless, the High Court found that the document could not realistically have made any difference to the Tribunal's decision.
111 So, counsel for the appellant in the appeal before this court submitted, SZMTA stands for the proposition that 'it is not enough to point to some defect in a decision which is capable of creating an infinitesimal possibility of a successful outcome. In other words, a very slender technical victory is no longer possible'. Also, SZMTA was dealing with a different kind of error in a different decision-making process. Here, as in Peko-Wallsend, the correct way to assess materiality is to assess whether the consideration that the Tribunal failed to take into account was in all the circumstances 'so insignificant that the failure to take it into account could not have materially affected the decision'.
112 Counsel for the appellant referred to material that was before the Tribunal about the appellant's relationship with his partner, his plans to re-join her to help her deal with her mental health issues and live together as a family, and what was said to be his role as the sole provider for the family. In relation to the adult children, he referred to material indicating that the appellant was a positive influence on them and that his daughter needed his support to work towards her goal of becoming a nurse. This material, it was said, was in favour of revocation, and it could not be said that 'the error by the Tribunal was so insignificant that it could not have affected the decision'.
113 Counsel also submitted that the nature of the task before the Tribunal here was different to the task in the protection visa cases that were under consideration in SZMTA. A decision-maker considering a protection visa application must make findings of fact and apply legal criteria to them to determine whether those criteria have been met. But in decisions under s 501CA(4), the decision-maker is performing an evaluative task which requires it to assess and weigh all relevant evidence in order to decide whether there is another reason why the cancellation should be revoked. That, it was submitted, is an exercise to which the test articulated in SZMTA does not readily apply.
114 In order to consider these submissions it is necessary to examine Peko-Wallsend, Hossain and SZMTA to determine whether the first of those cases states a different standard of materiality to SZMTA, which must be applied to an error of the kind that the Tribunal committed here.
115 In Peko-Wallsend the Minister for Aboriginal Affairs had recommended to the Governor- General under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) that a grant of certain land should be made. Mason J (Gibbs CJ and Dawson J agreeing, Brennan and Deane JJ reaching the same outcome on somewhat different grounds) held that in coming to that recommendation, the Minister had failed to take into account certain submissions which, on a proper construction of the Act, he was bound to take into account. At 39-42, Mason J summarised the principles applicable to the failure of a decision-maker to take into account a relevant consideration and the related ground of taking into account an irrelevant consideration. At 40 his Honour stated one of those principles as follows:
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision: see, e.g., the various expressions in Baldwin & Francis Ltd. v. Patents Appeal Tribunal (36); Hanks v. Minister of Housing and Local Government (37); Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (38). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: Reg. v. Bishop of London (39); Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd. (40).
116 In our view, care must be taken in applying these principles to an application for judicial review pursuant to the court's jurisdiction under s 476A of the Migration Act. An application of that kind can only succeed if the applicant demonstrates jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia  HCA 2; (2003) 211 CLR 476 at  (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). It has been said that Peko-Wallsend does not 'provide a sound basis for considering questions of jurisdictional error either at all or under the Migration Act': Minister for Immigration and Citizenship v SZRKT  FCA 317; (2013) 212 FCR 99 at  (Robertson J). Peko-Wallsend was an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and concerned a decision made under the Aboriginal Land Rights (Northern Territory) Act. While Mason J (at 39) described the ground relied on as substantially declaratory of the common law, Peko-Wallsend was decided before the adoption by the High Court of the concept of jurisdictional error as a unifying concept of constitutionally entrenched judicial review: see Hossain at -. As will be seen, the notion of materiality explained in Hossain and SZMTA is an outworking of that unifying concept.
117 The limitation which Mason J expressed in the passage quoted above to the court's power to set aside an administrative decision was not founded on any unifying concept of that kind. As his Honour said, the expressions of principle in the English decisions which he cited were 'various'. In Baldwin & Francis Ltd v Patents Appeal Tribunal  AC 663 at 693 Lord Denning referred to failure 'to take into account a vital consideration' (emphasis added). In Hanks v Minister of Housing and Local Government  1 QB 999 at 1020 Megaw J referred to 'cases where the factor wrongly taken into account, or omitted, is insignificant'. In R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society  QB 227 at 260 Griffiths LJ said that 'the court should not intervene unless it is convinced that this would have resulted in the decision going the other way'.
118 Also, in the first two of those decisions, the English courts framed the standard in terms of the materiality of the consideration that was left out of account. Approached that way, the question was whether the matter left out of consideration was, by its nature, significant enough to mean that the failure to consider it was an error permitting the court to quash the decision. That may not require an assessment of the importance which, in the circumstances and on the material before the decision-maker, the consideration would have held for the decision that was actually made. Mason J's own application of the principle in Peko-Wallsend (at 46) is consistent with the approach of the English courts. There is no indication in the reasons that his Honour assessed the significance of the overlooked material to the decision that the Minister in fact made.
119 The reliance which the plurality in Hossain placed on Peko-Wallsend needs to be understood with the above points in mind. Hossain was a case where the appellant had not established to the satisfaction of the Tribunal two necessary criteria for the grant of a visa. The Tribunal's lack of satisfaction in relation to one of the two criteria was the result of an error of law. But there was no error in relation to the other criterion, and the appellant's failure to establish it was a reason requiring that the visa application be refused. The High Court found that the second criterion was independent of the first criterion.
120 In light of different paths of reasoning that had been followed in the Full Court, the High Court took the opportunity to explicate the place of materiality in the concept of jurisdictional error. As had occurred in Kirk v Industrial Court of New South Wales  HCA 1; (2010) 239 CLR 531, the plurality (Kiefel CJ, Gageler and Keane JJ) quoted with approval (at ) passages from Jaffe, 'Judicial Review and Constitutional Fact' (1957) 70 Harvard Law Review 953. These were to the effect that sometimes there will be an express or implied legislative intention to limit review to 'certain gross errors', and sometimes there will be other situations where an error is so serious that 'judges will want a concept which enables them to declare the order "void"'.
121 Consistently with that, their Honours affirmed that a statute authorising administrative decisions will give force and effect to a decision if it 'sufficiently' complies with statutory preconditions which must exist in order to embark on the decision-making process and conditions which the statute expressly or implicitly requires to be observed for the decision-maker to make a decision of that kind. Thus (at , emphasis added):
Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.
122 And at  (emphasis in original), 'To return to the explanation of Professor Jaffe, jurisdictional error is an expression, not simply of the existence of an error but of the gravity of that error'. Materiality is required for a finding of jurisdictional error.
Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.
The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that '[d]ecision-making is a function of the real world'.
That a decision-maker 'must proceed by reference to correct legal principles, correctly applied' is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of noncompliance.
124 Then follows , which is quoted at  of these reasons, and includes the passage from Peko-Wallsend on which the appellant here relies.
125 Edelman J, with whom Nettle J generally agreed, took a similar approach to the plurality. Nettle J and Edelman J both noted that there may be circumstances where an error is jurisdictional despite not depriving a party of the possibility of a successful outcome: Hossain at  (Nettle J) and  (Edelman J). Both their Honours provided one such example.
126 Viewed in all the above context, there are a few things germane to the present appeal that can be said about Peko-Wallsend and Hossain. First, Hossain makes plain that where the threshold of materiality lies, so as to deny legal effect to an erroneous decision purportedly made under a statute, depends on the proper construction of the statute. So the description of the threshold in Peko-Wallsend does not necessarily describe the threshold imposed under the Migration Act.
127 Second, while in Peko-Wallsend Mason J also emphasised the importance of construing the statute, it would be going too far to attribute to his Honour a conception of jurisdictional error, and the role of materiality in it, which perfectly anticipated the doctrine developed in the High Court some 30 years later.
128 Third, since the threshold might vary from statute to statute, and since a finding of jurisdictional error depends on the gravity of the error, it follows that assessing whether there is a jurisdictional error will sometimes require a qualitative judgement which depends on matters of degree. In Hossain it was described in terms of 'magnitude' and 'extent'. That is not, however, to say that the threshold is a demanding one.
129 Fourth, if the statute does not say expressly or by implication from its text what the standard of materiality is, the court will apply common law principles informing the construction of statutes, which define limits on statutory authority to which the legislature can be taken to adhere. The plurality in Hossain highlighted the practicality of those common law principles, stating that they are not derived by logic alone and they recognise that decision-making is a 'function of the real world'. It follows from this and from the previous point above that while Hossain was a case where (the High Court found) as a matter of logic no decision was authorised different to the one the Tribunal made, that logical necessity does not set the threshold of materiality for all cases.
130 Fifth, on the facts of Hossain the High Court did not need to state where the threshold lies. Once it had found that there was an independent reason requiring the refusal of the visa application which could not be impugned, there was no need to enter into any qualitative examination of the impact of the error. So the statement of the standard in  of Hossain was couched in terms of when the threshold would ordinarily not be met, rather than the minimum that was required in order to meet it.
131 The plurality's use of Peko-Wallsend should be read in light of all these matters. In doing so, it is apparent that Hossain did not affirm Peko-Wallsend as a statement of a standard of materiality which, if met by an applicant, will mean that a failure to take into account a consideration made mandatory by the Migration Act will be a jurisdictional error, as that concept has been articulated by the High Court in recent years. In light of the place of Peko-Wallsend in the ongoing development of judicial review in Australia it would, with respect, have been wrong to approach the decision in that way. For the purposes of Hossain, Peko-Wallsend merely afforded an example of a statement in a previous decision of a threshold where, if it was not met, there would be no jurisdictional error.
132 If the reasons of the majority in SZMTA are read in the context of that understanding of Hossain, it is clear that SZMTA represents a further explication of the role of materiality in the doctrine of jurisdictional error. In Hossain the High Court did not need to state how consequential an error must be in order for it to be material, and therefore a jurisdictional error. There was also no need to address how materiality is to be determined when the consequence of the alleged jurisdictional error was the omission of factual material from consideration. But in SZMTA, on the approach of the majority of the judges, those matters were addressed.
133 As already stated, there were three appeals determined in the decision reported as SZMTA. They all related to applications for protection visas, and all concerned certificates and notifications under s 438 of the Migration Act which had the effect that, unless the Tribunal exercised a certain discretion, information or documents in the possession of the department would not be available to an applicant for review of a decision. In one of the appeals (CQZ15), the Department gave a certificate to that effect which was later conceded to be invalid and also a notification to the Tribunal, the existence of which was not disclosed to the visa applicant. The Federal Circuit Court had rejected the tender by the Minister of an affidavit containing the information which had been omitted from the Tribunal's review in order to show that the information could have had no bearing on the Tribunal's decision. The Full Court held that the evidence was at least potentially admissible and remitted the matter to the Federal Circuit Court. The High Court unanimously held that the Full Court was correct to so hold and did not assess the evidence for itself: SZMTA at , .
134 In another appeal (BEG15), there was a certificate, subsequently conceded to be invalid, the existence of which had not been disclosed to the visa applicant. The documents covered by it were summaries of a previous proceeding before the Tribunal involving the applicant. The High Court held that the courts below had been correct to find that the information in the documents was largely known to the applicant, was not relevant to the Tribunal's decision, had not been taken into account by the Tribunal and could have made no difference to the outcome: at , .
135 In the SZMTA appeal itself, a purported notification under s 438 of the Act had been given in relation to certain documents and information. The existence of the notification had not been disclosed to the visa applicant, which was a breach of the Tribunal's obligation to accord procedural fairness. The majority in the High Court (Bell, Gageler and Keane JJ) held that the notification was invalid as well. The majority inferred that the Tribunal had not had regard to the documents and information, and went on to find (at ) that 'the appropriate further inference to be drawn was that taking them into account could not realistically have made any difference to the Tribunal's decision'.
136 The other judges, Nettle and Gordon JJ, also concluded that the failure to disclose could not have deprived the applicants of the possibility of a successful outcome, but allowed the Minister's appeal on the basis of discretionary refusal of relief rather than the incorporation of a threshold of materiality into the concept of jurisdictional error. In taking that approach in all three appeals, Nettle and Gordon JJ were in dissent on the role of materiality in jurisdictional error, but not in the results.
137 So, unlike in Hossain, in two of the appeals in SZMTA it was necessary for the High Court to make a qualitative assessment of the potential impact of material which was the subject of a denial of procedural fairness, because the existence of the relevant certificate or notification under s 438 of the Act had not been disclosed, or material had been omitted from review by the Tribunal pursuant to an invalid notification. Unlike in Hossain, in SZMTA it was necessary for the majority, at least, to state the threshold of materiality that was to be applied to those qualitative assessments.
138 At the beginning of its reasons, the majority summarised its conclusions about the threshold in terms indicating that a breach of an obligation of procedural fairness, or an incorrect notification, will be material, and hence a jurisdictional error, if it deprives the applicant of 'the possibility of a successful outcome': SZMTA at -. However in the balance of the reasons, the majority repeatedly added the modifiers 'realistic' or 'realistically' to its statement of the threshold. For example, at : 'A breach is material to a decision only if compliance could realistically have resulted in a different decision'. See also , , , , , .
139 It is sometimes said that the reasons of the majority in SZMTA represent no departure from Hossain. To the extent that this means that Hossain and SZMTA are consistent with each other, that is correct. But in SZMTA it was necessary to say where the threshold for materiality lay, and there is no warrant in our view to disregard the repeated statements by the majority to the effect that an error will be material, and so jurisdictional, only if there could 'realistically' have been a different decision if the error had not been made. It is open to debate whether that is, in truth, a departure from the standard of materiality applied in Hossain, or even a departure from Peko-Wallsend or other previous High Court decisions that apply the concept of materiality or an analogue of that concept. But in our respectful view the debate is an arid one: the majority in SZMTA has expressed the threshold in clear terms.
140 Also, with all respect to the able arguments presented on behalf of the appellant in this case, we do not consider that the statements of the majority in SZMTA are confined by the kinds of errors, and the particular decision-making process, that were under consideration in that case. If it were necessary to derive a strictly binding ratio decidendi from the decision, that ratio might be so confined. If so, to the extent that the general statements of the majority apply beyond the particular circumstances of SZMTA, they would be obiter dicta. But even so, they are seriously considered dicta of a majority of the High Court, so that an intermediate court of appeal should not depart from them: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd  HCA 22; (2007) 230 CLR 89 at . They apply, in terms, to 'a breach of an inviolable limitation governing the conduct of the review': see SZMTA at . A failure to take into account a consideration made mandatory by the Migration Act is a breach of that kind. And for reasons we have given, Hossain did not preserve the statement of principle in Peko-Wallsend as some different level of materiality applicable to such a failure.
141 Counsel for the appellant also relied on a statement in Nguyen v Minister for Home Affairs  FCAFC 128; (2019) 270 FCR 555 at  that 'much will turn on the facts of the case, the decision-making process and the kind of error alleged'. But we do not consider that this is an acknowledgment of different thresholds for materiality for different types of decision under the Migration Act. Rather, it is an acknowledgment that the assessment of materiality will always be highly context dependent. To that extent, the appellant was correct to submit that in a case under s 501CA(4), the analysis required may be different to that required in a protection visa case. But that does not follow from any different 'test' for materiality.
142 It follows that after SZMTA, the requirement of materiality applies to a failure to take into account a mandatory consideration in the same way as it applies to a failure to accord procedural fairness or to any other breach of an inviolable limitation governing the exercise of statutory power. It may have been open previously to argue that the understanding of materiality reflected in Peko-Wallsend applied to a failure to take into account a mandatory consideration. That is, such a failure would generally be material unless, on a proper construction of the statute, it appeared that the nature of the mandatory consideration was so insignificant that a failure to take it into account would not invalidate the exercise of the power. Those situations aside, then, it may have been that any failure to take a mandatory consideration into account would be so fundamental that it would almost always be material. But the approach to materiality articulated in SZMTA applies to otherwise apparently fundamental failures to comply with implied preconditions on the exercise of statutory power, such as failure to accord procedural fairness. Like a failure to take a mandatory consideration into account, a failure to accord procedural fairness could lead the decision-maker to omit a wide range of factual material from consideration. So it does not appear to be open to an intermediate or first instance court to exempt a failure to take into account a mandatory consideration from the approach to materiality articulated by the majority in SZMTA.
143 It also follows from what we have said that it is putting an unwarranted gloss on SZMTA to say, as the appellant submits here, that the threshold for determining materiality is that there must be a possibility of a successful outcome that is more than 'infinitesimal', or that materiality only rules out 'a very slender technical victory', or even that the question is whether 'the error by the Tribunal was so insignificant that it could not have affected the decision'. As Nguyen shows, the inquiry into whether an error is material will inevitably be a context specific one and it would not assist that inquiry to try to articulate further the 'test' that emerges from SZMTA. While the relevant passages from that decision are (at least) seriously considered dicta of the High Court, they are not to be interpreted or construed as if they were statutory provisions. To adapt words used in EVS17 v Minister for Immigration and Border Protection  FCAFC 20; (2019) 268 FCR 299 at , to employ 'any overly precise textual formula is fraught with the risk of literalism and over-refinement'. We would only repeat that nothing in the present discussion indicates that the standard of materiality is a demanding one.
Did the primary judge misapply the requirement that the error be material?
145 Counsel for the appellant submitted that if the primary judge did identify the correct test, his Honour nevertheless misapplied that test. Broadly speaking, that was said to be because his Honour engaged in merits review.
146 Counsel submitted that it was significant that the Tribunal's error was not a failure to take into account a specific document, as in SZMTA, but a failure to take into account a mandatory consideration to which multiple items of evidence were relevant. This, it was said, meant that the court cannot know what the Tribunal would have made of all the material relevant to that consideration, where for the court to assess the material for itself would be impermissible merits review.
147 Counsel submitted that in the passage from the primary judge's decision quoted at  above, his Honour took engagement with the merits of the Tribunal's decision too far, and engaged in a weighing exercise which was properly the province of the Tribunal. Relying on Peko-Wallsend and on the approach taken in Hands v Minister for Immigration and Border Protection  FCAFC 225; (2018) 267 FCR 628, the appellant submitted that what was required here was an assessment of the significance of the consideration that was not addressed, rather than an assessment of its weight relative to the weight that the Tribunal ascribed to all the considerations that it did take into account. Counsel also submitted that there was nothing in the Tribunal's reasons to indicate the weight that it would have put on the consideration had it taken it into account.
148 Counsel for the appellant also submitted that failing to take a mandatory consideration into account was different to a denial of procedural fairness, or a failure to take account of a piece of evidence. The Tribunal's failure here meant it did not evaluate the evidence, make findings of fact, apply the terms of Direction 79 to those findings, give the consideration appropriate weight and balance it along with all the other mandatory considerations weighing for and against revocation. That is a much more involved set of tasks than simply comparing some omitted evidence to existing findings of the Tribunal, as occurred in SZMTA.
149 It is true that in SZMTA the majority warned against the risk that the court would engage in merits review, or otherwise trespass on the functions of the Tribunal. At  their Honours said:
The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal's failure to take it into account could not realistically have affected the result.
And at  (citations removed):
Whilst '[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome' the task is not impossible and can be done in these appeals.
150 Where 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. It will often be more difficult than performing a similar evaluation in relation to specific documents or information that have been omitted. Where it is an entire consideration that has been left out of account, there may be a wide range of factual material that has been omitted. The approach articulated in SZMTA means it will often be necessary for the court to evaluate all that material. In conducting that evaluation, the line between judicial review and merits review may be difficult to discern. Similarly, it will sometimes be difficult to evaluate the Tribunal's reasoning without substituting the court's own reasoning. The nature of the Tribunal's task when reviewing decisions under s 501CA(4), which requires a discretionary weighing of all relevant factors, compounds the difficulty confronting the court on judicial review.
151 Nevertheless, in SZMTA the majority made it clear (at ) that where materiality is in issue, it is an ordinary question of fact. It follows that despite all these difficulties, it is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review. It must resolve the question on the basis that the onus of proof is on the applicant: SZMTA at .
152 In our view, the approach the primary judge took here was consistent with SZMTA, and does not contain appealable error. At  (quoted at  above) his Honour was describing the weight the Tribunal in fact gave to the considerations it took into account; he was not ascribing his own weight to those considerations. His Honour was alive to the need to avoid the latter approach: see . And where, at , his Honour assessed the material that went to the effect of non-revocation on the appellant's partner and adult children, he did not make findings about whether they in fact had any significant financial or other dependence on the appellant. The findings were confined to whether the material gave any indication of such dependence; they concerned what the material did not say. That was an assessment of the objective significance of the material from the perspective of whether there was a realistic possibility that it could have made a difference. And while the material about the interests of the appellant's partner and adult children that was before the Tribunal was referred to in the submissions before the primary judge, on appeal there was no challenge to the finding (at ) that the appellant had not contended how that material might have led the Tribunal to reach a different result.
153 His Honour's conclusion (quoted at  above) also shows an objective assessment of the material that was not considered, in the context of the Tribunal's actual reasons for decision. Given the significant weight that the Tribunal placed on the primary considerations of the protection of the Australian community and the expectations of that community (in relation to which no error on the part of the Tribunal is claimed), that conclusion was correct. Assessed objectively, the material on which counsel for the appellant relied (see  above) was not sufficient to give rise to a realistic possibility of the Tribunal reaching a different conclusion. There is also no support in the primary judge's reasons for the submission made on behalf of the appellant that his Honour considered whether it was likely that the outcome would have changed.
154 Counsel also submitted that it was relevant to consider whether the Tribunal, if it had taken proper account of the mandatory consideration, might have asked more questions of witnesses and elicited information that did not in fact emerge. In the present case, both the appellant's partner and his adult son gave testimony at the Tribunal hearing, so the Tribunal could have asked them questions which might have elicited material supportive of revocation. Counsel for the appellant did not, however, identify what that material might have been, and there was nothing before the primary judge to indicate what those members of the appellant's family might have said had they been asked the (unspecified) questions, which would have added to the material about their views that was already before the Tribunal.
155 It is true that it is not always necessary for an applicant to demonstrate by evidence what he or she would have done had the relevant error not been made; much will turn on the facts of the case, the decision-making process and the kind of error alleged: Nguyen at . But in this case, the appellant was seeking to rely on the possibility of further material coming out before the Tribunal, and that material being sufficient to give rise to a realistic possibility of a different result. To that extent, it was necessary for the appellant to demonstrate, at least in broad terms, what that material would have indicated. In the present case there is no basis, in evidence or in inference, to think that there was additional material that would have been any more favourable to the appellant than the material that was in fact adduced. In those circumstances, this submission does not rise above speculation.
156 The appellant has not demonstrated that the primary judge fell into error in his assessment of the materiality of the Tribunal's error. The appeal should be dismissed, with costs.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Banks-Smith and Jackson.
Dated: 24 July 2020