AMI17 v Minister for Immigration

This matter concerned an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) that affirmed a decision not to grant the applicant a protection visa. The applicant alleged that the Tribunal had discriminated against him or otherwise acted unfairly, and specifically questioned whether the Tribunal's failure to disclose an invalid 438 Certificate and the documents covered by it was material to its decision.

The central legal issue before the court was whether the Tribunal's failure to disclose a 438 Certificate, or the documents covered by it, to the applicant constituted jurisdictional error. The court considered differing views on this issue, with a plurality of justices holding that such a failure might give rise to jurisdictional error if materiality was put in issue and the applicant discharged the burden of proving that the non-disclosure was in fact material. Materiality was defined as whether compliance realistically could have resulted in a different decision. In contrast, a non-plurality of justices found that a breach of the obligation to disclose a 438 Certificate automatically gave rise to jurisdictional error, irrespective of materiality, although materiality could be relevant to the court's discretion to refuse relief.

The court then examined the specific documents covered by the 438 Certificate to determine their materiality to the Tribunal's decision. The court found that each of the documents, relating to the validity of the application, the applicant's identity, previous visa applications, checklists regarding section 437 or 438 of the Act, correspondence between the Tribunal and the Department, and internal departmental emails concerning file retrieval, were irrelevant to the issues before the Tribunal. Consequently, the court concluded that the Tribunal's failure to disclose the 438 Certificate and its associated documents was not material to its decision.