MZAPC v Minister for Immigration and Border Protection

[2021] HCA 17

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

MZAPC  APPELLANT

AND

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ANOR  RESPONDENTS

MZAPC v Minister for Immigration and Border Protection

[2021] HCA 17

Date of Hearing: 5 March 2021
Date of Judgment: 19 May 2021

M77/2020

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

D J Hooke SC with S H Hartford Davis, S G Lawrence and D J Reynolds for the appellant (instructed by Conditsis Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M A Hosking for the first respondent (instructed by Clayton Utz)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

MZAPC v Minister for Immigration and Border Protection

Immigration – Refugees – Application for protection visa – Where appellant applied to Refugee Review Tribunal ("Tribunal") for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) ("Act") – Where s 438 notification issued under Act in relation to material including appellant's criminal record – Where Tribunal did not disclose existence of s 438 notification to appellant – Where first respondent conceded failure to disclose amounted to breach of procedural fairness – Where information covered by s 438 notification not referred to in reasons for decision – Whether breach material – Whether Tribunal in fact took s 438 notification information into account in making decision – Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account – Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision – Whether appellant or first respondent bore onus of proof of materiality – Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences.

Words and phrases – "counterfactual inquiry", "credit", "discharging the burden of proof", "failure to disclose", "judicial review", "jurisdictional error", "lost opportunity to present legal and factual argument", "materiality", "onus of proof", "opportunity to be heard", "practical injustice", "presumption", "procedural fairness", "realistic possibility", "reasonable conjecture", "statutory interpretation", "subconscious impact", "threshold of materiality".

Migration Act 1958 (Cth), Pt 7, s 438.

1. KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ.   This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection[1] as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.

   [1](2018) 264 CLR 123.

2. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA[2] to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

   [2](2019) 264 CLR 421.

3. The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited.

4. SZMTA was correctly applied in the result in the decision under appeal[3] to hold that a breach of an implied condition of procedural fairness by the Refugee Review Tribunal ("the Tribunal") in the conduct of a review under Pt 7 of the Migration Act 1958 (Cth) ("the Act") did not result in jurisdictional error in the decision of the Tribunal which affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a protection visa. The breach was constituted by a failure on the part of the Tribunal to disclose to the appellant the existence of a notification by the Secretary of the Department of Immigration and Border Protection under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary under s 418(3) of the Act.

   [3]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024.

   Facts and procedural history

5. The appellant is a citizen of India. He arrived in Australia in 2006 on a student visa which expired in 2008. He applied in 2007 for a further student visa which a delegate of the Minister refused in 2012. He then applied to the Migration Review Tribunal ("the MRT") for merits review of the decision of that delegate under Pt 5 of the Act. The MRT decided that it lacked jurisdiction because the application was lodged out of time. He then applied to the Federal Circuit Court for judicial review of the decision of the MRT. The Federal Circuit Court dismissed that application in 2013.

6. Having failed to obtain a further student visa, the appellant applied in 2014 for a protection visa. Amongst the claims he made in support of that application was a claim to fear that his uncle would kill him on his return to India in connection with a dispute between his uncle and his father over land in Punjab. He claimed that he was his father's oldest son and that his uncle had threatened to kill him if the land went under his name. He claimed that he had been kidnapped when visiting Punjab from Delhi in 2004. The kidnappers demanded that his father sign papers putting the land in their names. They released him after his father paid them a settlement amount.

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

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

9. The documents specified in the notification included a "Court Outcomes Report" which indicated that the appellant had been convicted of offences in the Dandenong Magistrates' Court in September 2011. The offences of which he had been convicted were three counts of drink driving, eight counts of driving while disqualified, three counts of using an unregistered vehicle on a highway, two counts of using a vehicle not in a safe and roadworthy condition, one count of removing a defective vehicle label, one count of failing to wear a seat belt and one count of an offence described as "state false name". There is no dispute between the parties to the appeal that the offence described as "state false name" was an offence of dishonesty.

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

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

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

    [4]cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

13. The Tribunal's statement of reasons for that final decision set out the member's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab as follows:

    "Despite some concerns about the applicant's credibility, I am willing to accept that there was a dispute between his father and his uncle over land in Punjab. I accept that when the applicant visited Amritsar in 2003 or 2004, he was taken to a house by his cousin (though not actually threatened as he stated at the hearing), drugged and held there until his father arrived and paid the amount of $AUD3500 for his release. I accept that the applicant stopped going to the Punjab after this until he came to Australia in 2006.

    I do not accept that the applicant has been subject to continuing threats in relation to the land dispute because he is the eldest son of his father. The applicant was able to reside in Delhi, India for 2-3 years after the Amritsar incident without facing any further harm from his uncles and his relatives. The Amritsar incident was 12-13 years ago and resolved when the father made payment to his uncle. Furthermore, on the applicant's oral evidence at hearing, in recent times his father has been pressured but not actually harmed or threatened by the relatives despite his father refusing to sign over the land through an affidavit. I do not accept that if the relatives wanted to harm the applicant over the land that they would not be threatening or harming his father in circumstances where the dispute originates in relation to the father and the father has the ability to sign a document giving them the land. I do not accept as credible or plausible that simply because his father was in Delhi and not Amritsar that this would completely deter the relatives from undertaking threatening or violent action against his father to obtain legal ownership of the land. The applicant stated at the hearing that his mother's brother was a policeman, which I accept. However, I do not accept as credible or plausible that the relatives would not threaten or harm his father (but would threaten or harm the applicant) because his mother's brother was a policeman. In all the circumstances, I do not accept that the relatives have a continuing adverse interest in the applicant.

    Considering all the circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future in India for any reason ... from his relatives over the land dispute."

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

15. The appellant in due course applied to the Federal Circuit Court for judicial review of the final decision of the Tribunal. The Federal Circuit Court dismissed that application in 2016.

16. The appellant next appealed to the Federal Court. The appeal was held in abeyance pending the decision in SZMTA. Following that decision, the notice of appeal to the Federal Court was amended by consent to comprise a single ground of challenge to the final decision of the Tribunal. The single ground of challenge, which had not been raised before the Federal Circuit Court, was that the decision "was affected by jurisdictional error, in that the Tribunal failed to comply with the rules of procedural fairness".

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

    Reasoning in the Federal Court

18. The Federal Court was constituted for the hearing of the appeal by Mortimer J alone. Her Honour recognised that the issue of materiality turned on whether disclosure to the appellant of the existence of the notification could realistically have resulted in the Tribunal having made a different decision[5].

    [5][2019] FCA 2024 at [39].

19. Noting that the information covered by the undisclosed notification had been potentially contrary to the interests of the appellant, Mortimer J went on to accept that she could not conclude that disclosure of the notification could realistically have resulted in the Tribunal having made a different decision without first finding that the Tribunal had in fact taken information covered by the notification into account in making the decision[6]. That accords with the approach taken by the Full Court of the Federal Court earlier in MZAOL v Minister for Immigration and Border Protection[7] and more recently in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15[8].

    [6][2019] FCA 2024 at [50].

    [7][2019] FCAFC 68.

    [8][2021] FCAFC 24.

20. Focusing on the potential for the offence of dishonesty referred to in the Court Outcomes Report covered by the notification to have borne on the Tribunal's rejection of the appellant's claim to fear harm in connection with the dispute over land in Punjab, and unable to find on the evidence before her that the offence of dishonesty had in fact been taken into account by the Tribunal in its findings in relation to that claim[9], Mortimer J dismissed the appeal.

    [9][2019] FCA 2024 at [52]-[58].

21. Mortimer J arrived at that result with evident reluctance. Echoing concerns she had already raised[10] and was later to repeat[11] about the need to find materiality at all in order to establish jurisdictional error where a breach of a condition of procedural fairness has been found, her Honour described the explanation of materiality in SZMTA as "difficult to understand and apply" and described the process of reasoning required to find materiality as "convoluted" and "confusing"[12]. To an aspect of her Honour's criticism it will be necessary to return.

    [10]DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at 160-163 [96]-[107].

    [11]PQSM v Minister for Home Affairs (2020) 382 ALR 195 at 196-203 [1]-[28].

    [12][2019] FCA 2024 at [40], [48].

    Appeal to this Court

22. In his appeal by special leave to this Court, the appellant does not go so far as to challenge the need to find materiality at all in order to determine that a breach of an implied condition of procedural fairness has resulted in jurisdictional error. He confines his attention to the content of materiality and its proof.

23. By his principal ground of appeal, the appellant disputes that he needed to prove that the Tribunal in fact took information covered by the notification into account in making the decision in order to establish that the failure to disclose the notification was material to the decision. He argues that the explanation of materiality in SZMTA properly understood demanded no more of him than that he demonstrate by way of reasonable conjecture that the Tribunal could have taken information covered by the notification into account adversely to him in making the decision and that, if it did, it could have been persuaded by him to make a different decision if it had disclosed the notification to him. He argues that demonstration of the reasonableness of that conjecture caused the onus to shift to the Minister, as the party to the application for judicial review seeking to uphold the decision of the Tribunal, to prove that disclosure of the notification could not in fact have resulted in the Tribunal having made a different decision. He argues that SZMTA should be re-opened and overruled if that understanding of its proper application is incorrect.

24. By his principal ground of appeal, the appellant also contends that Mortimer J independently erred by erecting and acting on a presumption of fact that the Tribunal did not take information covered by the notification into account in making the decision and casting the onus on him to displace that presumption. He argues that SZMTA should likewise be re-opened and overruled if and to the extent that it supports erection of that presumption.

25. By an additional ground of appeal, the appellant contends that Mortimer J was wrong to confine her consideration of the materiality of the non-disclosure of the notification to the potential for the offence of dishonesty to have borne on the Tribunal's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab to the exclusion of consideration of the potential for the other offences referred to in the Court Outcomes Report covered by the notification to have borne on the Tribunal's final decision. That additional ground of appeal raises no additional question of principle.

26. The two strands of the appellant's argument on his principal ground of appeal are best addressed sequentially. To address the first strand necessitates examination of the content and proof of materiality at the level of principle. To address the second necessitates examination of contextual considerations bearing on proof of the materiality of a failure to disclose a notification under s 438(2)(a) of the Act.

    Materiality and its proof

27. To understand materiality, it is necessary first to understand jurisdictional error. Though the concept of jurisdictional error is rooted in our constitutional history, only in this century has jurisdictional error come to be articulated as an explanation of the scope of the constitutionally entrenched original jurisdiction of this Court to engage in judicial review of the actions of Commonwealth judicial and executive officers[13], and hence the scope of the statutory jurisdiction conferred in identical terms on other courts created by the Commonwealth Parliament[14], and as an explanation of the scope of the constitutionally entrenched supervisory jurisdiction of State Supreme Courts to engage in judicial review of the actions of State judicial and executive officers[15].

    [13]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476.

    [14]Relevantly, s 476 of the Act.

    [15]Kirk v Industrial Court(NSW) (2010) 239 CLR 531.

28. Our contemporary understanding of jurisdictional error is the product of acceptance of propositions embraced incrementally in decisions of this Court beginning in the final decade of the last century. In their application to an administrative decision made by an executive officer whose decision-making authority is conferred by statute, those core propositions can be expressed as follows.

29. The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits[16]. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid[17].

    [16]Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [39]. See earlier Attorney-General (NSW)v Quin (1990) 170 CLR 1 at 35.

    [17]Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

1. The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation[18]. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation[19].

   [18]Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 666 [97]. See earlier Attorney-General(NSW)v Quin (1990) 170 CLR 1 at 36.

   [19]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Probuild Constructions(Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1.

2. Having expounded the contemporary understanding of jurisdictional error in substantially those terms[20], Kiefel CJ, Gageler and Keane JJ, who constituted the plurality in Hossain, proceeded to enunciate a common law principle of statutory interpretation. The principle enunciated is that a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process. The statute is instead "ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance"[21].

   [20](2018) 264 CLR 123 at 130-134 [17]-[27].

   [21](2018) 264 CLR 123 at 134-135 [29]-[30].

3. The principle of statutory interpretation enunciated in Hossain reflects what was there described as a "qualitative judgment[] 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"[22]. The principle might equally be described as "a common sense guide to what a Parliament in a liberal democracy is likely to have intended"[23]. The principle accommodates determination of the limits of decision-making authority conferred by statute to the reality that "[d]ecision-making is a function of the real world"[24] by distinguishing the express and implied statutory conditions of the conferral from the statutory consequences of breach and by recognising that the legislature is not likely to have intended that a breach that occasions no "practical injustice"[25] will deprive a decision of statutory force. Having been enunciated, and subject always to being revisited, the principle can be treated as "a working hypothesis ... upon which statutory language will be interpreted"[26].

   [22](2018) 264 CLR 123 at 134 [28].

   [23]Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21].

   [24]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134 [28], quoting Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 469.

   [25]Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]. See Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35].

   [26]Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21].

4. The qualification "ordinarily", and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example[27]. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another[28].

   [27]See CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 151 [47], 155 [70], 164 [129]; 375 ALR 47 at 59, 64, 76.

   [28]Tsvetnenko v United States of America (2019) 269 FCR 225 at 245-246 [96]-[101].

5. Beyond observing that the threshold of materiality will not ordinarily be met in the event of a failure to comply with a condition of a conferral of statutory decision-making authority "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"[29], the plurality in Hossain did not elaborate on the content of materiality. Nor was there occasion in Hossain to examine the onus of proof of materiality in an application for judicial review of an administrative decision.

   [29](2018) 264 CLR 123 at 134-135 [30].

6. Occasion both to examine the content of materiality and to consider the onus of its proof in an application for judicial review of an administrative decision arose in SZMTA. There the majority constituted by Bell, Gageler and Keane JJ held that "[a] breach is material to a decision only if compliance could realistically have resulted in a different decision"[30] and that "the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant [for judicial review] bears the onus of proof"[31].

   [30](2019) 264 CLR 421 at 445 [45].

   [31](2019) 264 CLR 421 at 445 [46].

7. Those holdings of the majority were determinative of the outcome in SZMTA. In the judgment under appeal in that case, a judge of the Federal Court had found jurisdictional error in a decision of the Tribunal having regard to the "prospect" that the Tribunal had not taken certain documents and information into account in making its decision under review. The majority held the finding to have been erroneous in precisely delineated respects. One was that "his Honour failed to make a finding as to whether the Tribunal had in fact failed to take such documents and information into account in reaching its decision". Another was that, "in the event of finding that the Tribunal had failed to take such documents and information into account, his Honour erred in not going on to determine whether the Tribunal's decision could have been different if the Tribunal had taken the documents and information into account"[32].

   [32](2019) 264 CLR 421 at 451 [69].

8. Subsequently, in CNY17 v Minister for Immigration and Border Protection[33], Kiefel CJ and Gageler J referred to the determination of materiality by a court as involving "a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation". The same point was made in different language by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection[34], where it said that "[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker" and that "[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case".

   [33](2019) 94 ALJR 140 at 151 [47]; 375 ALR 47 at 59.

   [34](2020) 273 FCR 170 at 187 [87]-[88].

9. The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings[35], the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached[36], whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

   [35]Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 350, referring to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640, 642-643.

   [36]Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640, 642-643. See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575.

10. Bearing the overall onus of proving jurisdictional error[37], the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

    [37]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616 [67], 623 [91]-[92]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 [24]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1100 [38]; 373 ALR 196 at 205.

11. There is no reason to consider that the burden placed on the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with the condition that has been breached is significantly more onerous than the burden indisputably borne by the plaintiff of proving on the balance of probabilities the historical facts necessary to enable the court to be satisfied that the condition has in fact been breached. And especially in a case such as the present, where the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman[38] prevents a decision-maker appearing as an active party in a proceeding for judicial review of one of its decisions, there is no reason to consider that the burden would more fittingly be borne by the active defendant in a proceeding for judicial review to prove the historical facts necessary to enable the court to be satisfied that a different decision could not have been made.

    [38](1980) 144 CLR 13 at 35-36.

12. In support of his argument that the onus should shift to the Minister to disprove materiality, the appellant relies on several decisions of this Court before Hossain and SZMTA. Neither individually nor cumulatively do those decisions indicate that a different analysis is warranted.

13. Balenzuela v De Gail[39], the earliest of the decisions on which the appellant relies, concerned the grant of a new trial at common law where evidence was found to have been wrongly rejected in a trial before a civil jury. The principles governing the grant by a court of a new trial at common law can at best be applied by analogy to the discernment by a court of jurisdictional error. Because those principles concern the legal consequence for an ultimate decision of a legal error in the process that led to that decision, however, the analogy is close.

    [39](1959) 101 CLR 226.

14. In Balenzuela[40], Dixon CJ endorsed the view expressed by Higgins J in Robinson & Vincent Ltd v Rice[41] that at common law, as under the judicature rule, a court would not grant a new trial on the ground of improper rejection of evidence unless satisfied that "some substantial wrong or miscarriage [had] been thereby occasioned". Dixon CJ went on to hold that it was enough for a court to be satisfied of a substantial wrong or miscarriage that "evidence definitely material to the determination of the case" was wrongly excluded at the instance of the successful party[42]. In referring to evidence "definitely material to the determination of the case", his Honour was referring to evidentiary material within the category of evidentiary materials he had earlier referred to as "evidentiary materials by which it is not an unreasonable hypothesis to suppose the judgment of the jury might be affected, even if illogically"[43]. The "basal fact" warranting the grant of a new trial in the case was that "material evidence was erroneously excluded from the consideration of the jury". Outside the province of the court in deciding that a new trial was warranted was either "to inquire into the effect which the evidence if admitted would produce upon the [c]ourt if the [c]ourt were the tribunal of fact" or "to speculate on the effect which it would have produced on the jury"[44]. Taylor J referred similarly to "material evidence"[45].

    [40](1959) 101 CLR 226 at 235.

    [41](1926) 38 CLR 1 at 10.

    [42](1959) 101 CLR 226 at 237.

    [43](1959) 101 CLR 226 at 236.

    [44](1959) 101 CLR 226 at 236-237.

    [45](1959) 101 CLR 226 at 238.

15. The Court in Dairy Farmers Co-operative Milk Co Ltd v Acquilina[46] was constituted by Justices who included all other Justices who had constituted the Court in Balenzuela. The unanimous reasons for judgment of the Court in Acquilina referred to the law laid down in Balenzuela as no different from that laid down more than one hundred years earlier in Crease v Barrett[47]. There it had been said that a court would be justified in refusing to grant a new trial in a case where evidence was improperly rejected "where, assuming the rejected evidence to have been received, a verdict in favour of the party for whom it was offered would have been clearly and manifestly against the weight of evidence". The Court added in Acquilina that "clear" from Balenzuela was "that a new trial ought not to be ordered if the Court is satisfied that if the rejected evidence had been received it could not have affected the jury's verdict"[48]. After a detailed examination of the evidence that had been led at the trial in that case, the Court in Acquilina was satisfied that reception of the wrongly rejected evidence could not have affected the jury's verdict and on that basis concluded that there was no justification for a new trial to have been ordered.

    [46](1963) 109 CLR 458.

    [47](1835) 1 C M & R 919 at 933 [149 ER 1353 at 1359].

    [48](1963) 109 CLR 458 at 463.

16. Stead v State Government Insurance Commission[49], the next of the decisions on which the appellant relies, concerned the grant of a new trial by an appellate court on an appeal by way of rehearing where procedural unfairness had occurred in the conduct of a trial before a judge alone. Because procedural unfairness can result in jurisdictional error, the analogical force of the reasoning in Stead is especially strong, as was recognised in SZMTA[50].

    [49](1986) 161 CLR 141.

    [50](2019) 264 CLR 421 at 445-446 [49]. cf Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [26].

17. The unanimous holding in Stead was captured in the statement of the Court that, to obtain an order for a new trial, "[a]ll that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome" and that "[i]n order to negate that possibility, it was ... necessary for the [intermediate appellate court] to find that a properly conducted trial could not possibly have produced a different result"[51]. It may be said immediately that it would plainly be wrong to understand that statement as conveying that the appellant did not need to show that the denial of procedural fairness had deprived him of the possibility of a successful outcome in order to obtain an order for a new trial. To say that a demonstration that the appellant had been deprived of the opportunity of a successful outcome is an aspect of proof of procedural unfairness is necessarily to accept that procedural unfairness is a matter of practical injustice, so that a demonstration of a bare or merely technical denial of procedural fairness alone is not sufficient to establish an entitlement to a new trial.

    [51](1986) 161 CLR 141 at 147 (emphasis added).

18. Fully to appreciate the content of that statement about the need for an unnegated possibility, it is necessary to appreciate the procedural and factual context in which the statement was made. Necessary to appreciate is that the context was a contested appeal before an intermediate appellate court. The record before the appellate court showed that, in the trial of an action for damages for personal injury arising out of a motor vehicle accident, counsel for the appellant plaintiff had in fact sought to submit to the trial judge that evidence given by a doctor to the effect that there was no causal link between the accident and the appellant's condition should not be believed. The record showed that counsel had in fact been stopped by the trial judge from making that submission. The record further showed that the trial judge had gone on in a reserved judgment to accept the evidence of the doctor and to find that there was no causal link between the accident and the appellant's condition.

19. Plainly, what was being said in Stead was that those facts, appearing starkly on the face of the appellate record, should have been sufficient to satisfy the intermediate appellate court that there was a realistic possibility that the trial judge could have found a causal link between the accident and the appellant's condition had counsel been permitted to complete his submission. There was no need for the appellant to lead evidence of what counsel would have submitted to the trial judge about why the evidence of the doctor should not have been believed and there was no need for the appellant to prove on the balance of probabilities that the trial judge would have found the submission of counsel persuasive.

20. But equally, what was being acknowledged in Stead was that there might have been other facts disclosed by the appellate record that undermined the realistic possibility of the trial judge having found a causal link between the accident and the appellant's condition had counsel been permitted to complete his submission. Within the forensic contest of the appeal, it was open to the respondent in argument to seek to identify those facts and to persuade the appellate court that the possibility was not realistic. That might have been a tall order given the centrality of the issue on which counsel had not been permitted to complete his submission, but not an inherently impossible one. Whether the appellate court was or was not satisfied that the appellant had been deprived of the realistic possibility of the trial judge having found a causal link would then fall to be determined at the end of the whole of the argument on the appeal having regard to inferences available to be drawn from the whole of the appellate record.

1. Once it is acknowledged that the inquiry postulated by Stead was as to whether or not the appellate court was ultimately to be satisfied that the outcome of the trial could realistically have been different had the procedural error that in fact occurred not occurred, what becomes apparent is that the inquiry postulated by Stead was not different in substance from the inquiry postulated by Balenzuela as explained in Acquilina. What also becomes apparent is that, although directed to determining whether an error in a decision-making process engaged in by a court should result in an order for a new trial, the inquiries postulated by Balenzuela and Stead are not different in substance from the inquiry postulated by SZMTA directed to determining whether an error in a decision-making process engaged in by an administrator has resulted in jurisdictional error.

2. Just as a court called upon to determine whether a new trial should be ordered must be careful not to assume the function of the primary trier of fact (whether it be a judge or a jury), so a court called upon to determine whether jurisdictional error has occurred must be careful not to assume the function of the decision-maker. Faced with a procedural irregularity having been shown to have occurred in a decision-making process, the court is nevertheless in each case charged with the responsibility of determining for itself whether the result in fact arrived at by the decision-maker in the decision-making process could realistically have been different had that procedural irregularity not occurred.

3. To the extent that there can be said to be a difference between the approach that Balenzuela and Stead indicate is to be taken to the grant of a new trial and the approach that SZMTA indicates is to be taken to the determination of jurisdictional error, the difference lies not in the substance of the counterfactual inquiry that must be undertaken but in the identification of the factual foundation on the basis of which the counterfactual conjecture of a realistic possibility falls to be assessed. In an application for a new trial, the decision-making process in fact engaged in by a court will almost invariably appear on the face of the appellate record. In an application for judicial review of an administrative decision, the decision-making process in fact engaged in by the decision-maker will inevitably need to be proved by inferences drawn from admissible evidence to the extent that it is in controversy.

4. The substantial correspondence between the Balenzuela and Stead approach to the grant of a new trial and the SZMTA approach to the determination of jurisdictional error was presaged in Nobarani v Mariconte[52], which was decided on the same day as Hossain. Balenzuela and Stead were there stated to reflect a requirement that "the error must usually be material in the sense that it must deprive the party of the possibility of a successful outcome". By reference to the holding in Hossain, the same requirement was said to be reflected also in the ordinary requirement for an error to be considered jurisdictional.

   [52](2018) 265 CLR 236 at 247 [38].

5. Next chronologically in the decisions of this Court preceding Hossain and SZMTA on which the appellant relies is Kioa v West[53]. The appellant seeks to support a more limited fact-finding role by a court by parsing some of the reasoning of some members of the Court in relation to the facts. Kioa v West was a landmark decision in the development of our understanding of the content and provenance of obligations to afford procedural fairness in the context of statutory decision-making. Having arisen under the Administrative Decisions (Judicial Review) Act 1977 (Cth), however, Kioa v West has nothing to say about jurisdictional error.

   [53](1985) 159 CLR 550.

6. Much more to the point is the appellant's reliance on Re Refugee Review Tribunal; Ex parte Aala[54]. Aala was not only a case about jurisdictional error; it was the case that established that non-compliance with a statutory obligation to afford procedural fairness can result in jurisdictional error attracting relief in the constitutionally entrenched original jurisdiction of this Court. One of the arguments put to the Court in Aala was cast in terms that, to attract relief, the non-compliance "must be sufficiently serious to allow the process to be characterised as beyond power, as involving procedural ultra vires"[55]. The argument was dealt with differently in the reasoning of different members of the Court. Notably, all the responses to the argument invoked Stead.

   [54](2000) 204 CLR 82.

   [55](2000) 204 CLR 82 at 87.

7. McHugh J foreshadowed Hossain and SZMTA in emphasising that not every denial of procedural fairness occurring in a decision-making process necessarily affects the decision that results from that process[56]. Satisfied that there was "no realistic possibility" that the decision-maker could have been persuaded to take a different view of the prosecutor's credibility had the prosecutor been afforded procedural fairness, his Honour would have dismissed the application for judicial review on the basis that the denial of procedural fairness had not deprived the prosecutor of the possibility of a successful outcome[57]. His view of the facts, however, was a minority view. Separately analysing the facts, Gleeson CJ[58], Kirby J[59] and Callinan J[60] each expressed themselves to be satisfied that the decision-maker could have taken a different view of the prosecutor's credibility had the prosecutor been afforded procedural fairness and that a decision favourable to the prosecutor could have been reached had the decision-maker accepted the prosecutor's credibility.

   [56](2000) 204 CLR 82 at 122 [104].

   [57](2000) 204 CLR 82 at 127-128 [121]-[122].

   [58](2000) 204 CLR 82 at 88-89 [3]-[4].

   [59](2000) 204 CLR 82 at 130-132 [130]-[134].

   [60](2000) 204 CLR 82 at 153-155 [211].

8. The reasoning of Gaudron and Gummow JJ, with which Hayne J relevantly agreed, was more complex. The reasoning contains passages that can be read as stating that even a "trivial" denial of procedural fairness amounts without more to a jurisdictional error and as relegating any consideration of the significance of the denial of procedural fairness to the decision that was made to be taken into account by a court, if at all, in exercising discretion to grant relief once jurisdictional error has been found[61]. Tellingly, however, after undertaking their own factual analysis of the decision-making process that had occurred, their Honours borrowed from the language of Stead to conclude that "the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome"[62].

   [61](2000) 204 CLR 82 at 101 [41], 106-110 [51]-[62].

   [62](2000) 204 CLR 82 at 116-117 [80].

9. Despite differences in emphasis and expression, the reasoning of all members of the Court in Aala to the result in that case was ultimately not inconsistent with the prosecutor having borne the onus of establishing that compliance with procedural fairness could realistically have resulted in a different decision.

10. Finally, the appellant places reliance on Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[63] and on reasoning of Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH[64]. Whilst it may be accepted that the breach of procedural fairness found to have occurred in VEAL was not analysed in terms of materiality, having regard to the centrality and prejudicial nature of the undisclosed information which had in fact been taken into account by the decision-maker despite being said to have been given "no weight", it is not at all difficult to regard the outcome in that case as consistent with a requirement for a breach of procedural fairness to be material in order to result in jurisdictional error. The reasoning in WZARH on which the appellant places reliance was introduced with citation to Stead by express recognition that breach of the condition of procedural fairness implied into the statutory power in issue in that case would have been "material" only if it deprived the applicant of "the possibility of a successful outcome"[65]. Implicit in the characterisation of the case as one in which "practical injustice" lay in the denial of "an opportunity which in fairness ought to have been given"[66] was that the case was one in which that previously identified threshold of materiality was met[67].

    [63](2005) 225 CLR 88.

    [64](2015) 256 CLR 326.

    [65](2015) 256 CLR 326 at 341 [55]-[56].

    [66](2015) 256 CLR 326 at 343 [60].

    [67](2015) 256 CLR 326 at 343-345 [62]-[69].

11. Accordingly, the decisions on which the appellant relies provide no support for the shift in onus for which he contends. Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.

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

12. Necessary next is to consider the more specific question of what historical facts a plaintiff in an application for judicial review must prove in order to establish the materiality of a breach of procedural fairness constituted by failure on the part of the Tribunal, in the conduct of a review under Pt 7, to disclose the existence of a notification by the Secretary under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary pursuant to the procedural obligation imposed on the Secretary by s 418(3).

13. The automatic statutory consequences of a notification under s 438(2)(a), spelt out in SZMTA[68], are that the Tribunal has no power to take information covered by the notification into account in making its decision unless it affirmatively exercises the discretion conferred by s 438(3)(a) and has no power to disclose that information to the applicant for review unless it affirmatively exercises the discretion conferred by s 438(3)(b). Also spelt out in SZMTA[69] is that the Tribunal is obliged to exercise those discretions within the bounds of reasonableness and is obliged to perform its procedural obligations under ss 424AA, 424A and 425 to the maximum extent permitted by the reasonable exercise of the discretion conferred by s 438(3)(b). It is precisely because a notification has those statutory consequences that the implied condition of procedural fairness requiring the Tribunal to give the applicant for review notice of the notification was held in SZMTA to arise[70]. Armed with notice of the notification, the applicant for review becomes equipped to exercise the general entitlement that he or she has under s 423 specifically to present legal and factual argument to the Tribunal for a favourable exercise of the discretions conferred by s 438(3)(a) and (b)[71].  

    [68](2019) 264 CLR 421 at 439 [23]-[24].

    [69](2019) 264 CLR 421 at 439 [24].

    [70](2019) 264 CLR 421 at 440-441 [29]-[30].

    [71](2019) 264 CLR 421 at 441 [30]-[31].

14. The materiality of a failure to disclose a notification under s 438(2)(a) must in that context turn on the potential for information covered by the notification to have borne on the decision which the Tribunal in fact made on the review and on how the Tribunal in fact dealt with that information in making that decision. The potential for information covered by the notification to have had some subconscious impact on the Tribunal in making the decision can for a moment be deferred. As to the potential for information covered by the notification to have impacted on the Tribunal's conscious deliberation if taken into account in making the decision, two categories of case have been shown to have arisen.

15. The first category of case, illustrated by SZMTA, is where information covered by the undisclosed notification might have the potential to have borne on the decision in a manner helpful to the applicant. Logically, disclosure of the notification in a case in that first category could not have resulted in the Tribunal making a different decision if the Tribunal did in fact take the information into account in making the decision that it did. Hence, it was emphasised in SZMTA that a necessary but not sufficient step in establishing the materiality of non-disclosure in that case was proof on the balance of probabilities that the Tribunal did not take the potentially supportive information into account in making its decision.

16. The second category of case, illustrated by the circumstances giving rise to this appeal, as well as by MZAOL and CQZ15, is where information covered by the undisclosed notification might have the potential to have borne on the decision in a manner adverse to the interests of the applicant. Logically, disclosure of the notification in a case in that second category could not have resulted in the Tribunal making a different decision if the Tribunal did not in fact take the information into account in making the decision that it did. Hence, as was recognised by Mortimer J and emphasised by the Full Courts in both MZAOL and CQZ15, a necessary but not sufficient step in establishing non-disclosure to have been material in a case in that category is proof on the balance of probabilities that the Tribunal did take the potentially adverse information into account in making its decision.

17. There is no reason to think that the ease or difficulty of discharging the burden of proof should in practice be the same for a plaintiff in each category of case. To the contrary, the statutory consequences of giving a notification for the procedure to be adopted by the Tribunal provide reason to think that in practice an inference that the Tribunal did not take potentially helpful information into account in making its decision will more readily be drawn on the balance of probabilities than will an inference that the Tribunal did take potentially adverse information into account in making its decision. That is because, as the majority observed in SZMTA[72], "[t]he drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act". The majority continued:

    "[T]he Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision."

    [72](2019) 264 CLR 421 at 445 [47].

18. That observation of the majority was singled out for criticism by Mortimer J in the judgment under appeal as appearing to require a court on judicial review of a decision of the Tribunal to apply a "presumption" that the Tribunal did not take information covered by a notification into account in making the decision[73]. The observation was not so stated and should not be so interpreted. The observation is no different in its significance or its generality from the routinely cited and routinely illustrated observation in Minister for Immigration and Multicultural Affairs v Yusuf[74] to the effect that the obligation imposed on the Tribunal by s 430(1)(c) to set out its findings on material questions of fact entitles a court to infer that a matter not mentioned by the Tribunal in the statement of the reasons that it in fact gives for its decision was not considered by it to be material.

    [73][2019] FCA 2024 at [43].

    [74](2001) 206 CLR 323 at 346 [69].

19. The plaintiff on an application for judicial review of a decision of the Tribunal faces no presumptive impediment to the discharge of his or her burden of proof. Whether or not the plaintiff has discharged the burden of proving on the balance of probabilities that particular information covered by a particular notification was or was not taken into account by the Tribunal in making the decision under review falls to be determined at the end of the day by reference to inferences appropriate to be drawn from the totality of the evidence adduced on the application.

20. Before turning to examine whether the appellant discharged his burden of proving on the balance of probabilities that the Tribunal took potentially adverse information covered by the notification into account in making its final decision in the present case, it is appropriate to return to the topic of the potential for information covered by a notification to have had a subconscious impact on the Tribunal even if the Tribunal did not consciously take that information into account. The potential arises from the availability of an inference, which the appellant seeks to call in aid, that the Tribunal can be expected in the conduct of a review at least to look at information covered by a notification for the purpose of considering exercise of the discretions conferred by s 438(3)(a) and (b).

21. Quite apart from practical difficulties inhering in proof of a subconscious impact, there is a conceptual difficulty in fathoming how the potential for information covered by a notification to have had an impact on the subconscious of a member who constitutes the Tribunal can properly bear on the legal consequence of a failure to discharge the procedural obligation that it breaches through non-disclosure of a notification. As was noted in Minister for Immigration and Border Protection v SZSSJ[75], whilst "compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power", "[o]rdinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry". There is an oddity in conceiving of the opportunity to be heard of which the appellant was deprived by non-disclosure of the notification as a lost opportunity to present legal and factual argument to the Tribunal directed to the Tribunal's subconscious. There is a similar oddity in thinking that the Tribunal was required to examine its own subconscious in considering the exercise of the discretions conferred by s 438(3)(a) and (b).

    [75](2016) 259 CLR 180 at 206-207 [82]-[83].

22. Best is to conceive of the potential for information covered by a notification to have had a subconscious impact on the Tribunal not as bearing on the statutory consequence of non-compliance with the Tribunal's procedural fairness obligation to give notice of the notification but rather as having the potential to bear on the discharge of the Tribunal's distinct obligation of procedural fairness to ensure that what occurs in the conduct of the review "is never such that a fair-minded lay observer properly informed as to the nature of the procedure for which [Pt 7] provides might reasonably apprehend that the [Tribunal] might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of a review"[76].

    [76]CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 146-147 [17]; 375 ALR 47 at 52.

1. In the case of potentially adverse information covered by a notification that has not been proven to have been taken into account by the Tribunal in making its decision, a question for a court on judicial review in an appropriate case can still remain whether the information was so "highly prejudicial" to the applicant for review that "the fair-minded lay observer, acting reasonably, would not dismiss the possibility that the [Tribunal] may have been affected by [the information] albeit subconsciously"[77]. So much was illustrated by the approach taken in CQZ15. The Full Court there found that a breach by the Tribunal of its procedural fairness obligation to give notice of a notification did not result in jurisdictional error because the Tribunal did not in fact take the highly prejudicial information covered by the notification into account in making the decision. The Full Court nevertheless went on to find that the decision was affected by jurisdictional error on the basis that "[t]he fair-minded lay observer might entertain the possibility that, having read the information for the purpose of considering the discretion in s 438(3), the Tribunal might have been subconsciously influenced by the prejudicial information ... in making its decision"[78]. The structure of that analysis undertaken by the Full Court was sound in principle.

   [77]CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 148-149 [29]; 375 ALR 47 at 55, quoting Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at 552 [75].

   [78][2021] FCAFC 24 at [116].

   Failure of proof of materiality

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

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

4. The fact that the Tribunal breached one procedural obligation by failing to disclose to the appellant the existence of the notification provides no foundation in the circumstances of the case for inferring that it had breached others. Nothing in its statement of reasons for the final decision, or elsewhere in the evidence, contains any hint that the Tribunal failed to heed the automatic statutory consequences of the notification or that the Tribunal made a choice affirmatively to exercise the discretion conferred by s 438(3)(a) to take the offence of dishonesty into account but not the discretion conferred by s 438(3)(b) to draw the information that it had about that offence to the attention of the appellant. The general reference in the statement of reasons for the Tribunal's initial decision to it having considered all the material before it cannot sensibly be read as indicating otherwise.

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

6. Notwithstanding any weight Mortimer J may have accorded to what she wrongly characterised as a "presumption" emerging from the observation of the majority in SZMTA in the passage of which she was critical, her Honour was undoubtedly correct in finding that the Tribunal's statement of reasons "[did] not disclose any real assessment of the appellant's honesty at all, let alone an assessment of a kind that might suggest its reasoning was affected by the presence of the 'State false name' conviction in the ... notification information"[79]. Her Honour's conclusion that the appellant had failed to discharge the onus of proving that the Tribunal in fact took the offence of dishonesty into account in making the final decision was not affected by appealable error.

   [79][2019] FCA 2024 at [57].

   No error in not considering other offences

7. Left to last is the appellant's argument that Mortimer J was wrong to confine her consideration of materiality to the offence of dishonesty to the exclusion of consideration of the other offences referred to in the Court Outcomes Report.

8. The Minister points out that the argument contradicts the appellant's position before Mortimer J that the offence of dishonesty was the only offence rationally capable of affecting the final decision. That would be a compelling reason to revoke special leave to appeal on the additional ground. The Minister, however, does not seek that revocation. The additional ground of appeal stands. The merits of the appellant's argument on it must therefore be addressed.

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

10. The appellant has not sought to argue that the information about the offences was cumulatively so highly prejudicial to the appellant as to lead to the conclusion that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the conduct of the review. The nature of the offences, in any event, provides no foundation for such an argument. The offences are not so serious that their accumulation might reasonably be argued to be capable of leading a fair-minded lay observer to think that the Tribunal might not bring an impartial and unprejudiced mind to bear on its determination of the merits of any claim in issue in the review.

    Disposition

11. The appeal must be dismissed with costs.

12. GORDON AND STEWARD JJ.   This appeal concerns judicial review of administrative action for jurisdictional error. The Court has recently divided about the content of the applicable principles[80]. Identifying those principles demands attention to the significance of the fact that the Court is concerned with the exercise of public power by the State against an individual and the consequences for the administration of justice.

    [80]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928; 383 ALR 407.

13. The applicable principles should now be restated. Non‑compliance with an express or implied condition of an exercise of power will result in a decision exceeding the limits of the decision‑making authority conferred by statute unless compliance with the condition could not have made a difference to the decision that was made in the circumstances in which the decision was made.

14. There are evidently two steps. First, it is necessary for an applicant for judicial review to identify an error and establish that the identified error could realistically have resulted in a different decision. This sets a low bar. It would be a mistake to describe this as an evidentiary onus. The task of demonstrating that a decision could realistically have been different had an error not occurred is better understood as directed at the quality or severity of the error and what, as a matter of logic and common sense, might have resulted. It necessarily calls for an assertion as to how a decision might have been different and an explanation as to why that is so. But because the bar is low, a court should hesitate to reject a sensible and reasonable postulation about what the result could have been. Naturally, speculation and conjecture will not be sufficient. More is needed. But it is not necessarily a task which is determined by leading evidence and by demonstrating what is possible on the balance of probabilities. That is because the subject matter of the inquiry is hypothetical; it is not a matter of proving what could have happened. Rather, the task is one of persuasion, based upon the nature of the breach and the claims that have been made, as well as logic and common sense. Put in different terms, precisely what must be shown will depend upon the nature of the alleged error. In some cases, however, an error will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker.

15. If the applicant cannot establish such an error, the judicial review application fails. If, however, the applicant does establish such an error, the issue of materiality is then raised. It then is necessary for the respondent to establish that that error was immaterial – that compliance with the condition could not have made a difference to the decision that was made – in order to establish that non‑compliance with the condition did not lead to jurisdictional error. It is convenient to refer to this second aspect of the rule as an issue about "materiality".

16. The two steps are different. The two steps are directed at different ends. The first step is for the applicant to establish a connection or relationship between the identified default and the course of decision‑making actually followed. It does not require the applicant to predict or conjecture about what the decision‑maker could or might have done if there had been no error. (And, as has been observed, there will be cases where the error made is of such a kind that the error will be jurisdictional regardless of its effect on the outcome of the particular case.) The second step, if it is reached, requires the decision‑maker to show that the error could not have made a difference.

17. The restated principles differ from the approach adopted by the majority in this Court in Minister for Immigration and Border Protection vSZMTA[81]. There the majority said that the applicant bore the onus of showing that the error was material. But the question of onus was not the subject of submissions and was not decisive of the result[82]. This is the first case in which the Court has considered the issue of onus with the benefit of argument. As these reasons will show, the restated approach is both principled and practical.

    [81](2019) 264 CLR 421.

    [82]SZMTA (2019) 264 CLR 421 at 444 [41]; cf John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-440.

    Public power

18. We are concerned with the application of public power to individuals. That always requires justification. The justification here is statute. It must now be accepted that breach of a condition regulating the exercise of a statutory power does not always mean that the exercise of power is invalid and of no effect[83].

    [83]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391 [91]-[93]; Hossain (2018) 264 CLR 123 at 134-135 [29]-[30], 136 [39], 145 [65]; SZMTA (2019) 264 CLR 421 at 433 [2]‑[3], 458 [90]; ABT17 (2020) 94 ALJR 928 at 948 [72], 954-955 [110]; 383 ALR 407 at 429-430, 438-439.

19. Fundamental principle requires the conclusion that, subject to contrary legislative intention, where an applicant shows a decision‑maker to have failed to comply with a statutory condition, and where that failure could realistically have affected the outcome, it is for the respondent (the Executive) to establish that compliance with the condition could not have made a difference to the outcome. It is not for the individual affected by the wrongful exercise of power to establish that it could have made a difference to the outcome.

20. The Constitution "is framed upon the assumption of the rule of law"[84]. The precise meaning of the rule of law may be, and often is, contested. But what is in issue in this appeal takes the content of the rule of law at its narrowest. That one "cardinal principle" of the rule of law, the irreducible minimum about which there is not and cannot be any debate, is "that Government should be under law, that the law should apply to and be observed by Government and its agencies, those given power in the community, just as it applies to the ordinary citizen"[85]. As Sir John Laws has written, the "agreed beginning" for debates about the rule of law is "that State power must be exercised in accordance with promulgated, non‑retrospective law made according to established procedures"[86].

    [84]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [31]. See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [40], 25-26 [44].

    [85]Stephen, "The Rule of Law" (2003) 22(2) Dialogue 8 at 8. See also Laws, The Constitutional Balance (2021) at 13, 15.

    [86]Laws, The Constitutional Balance (2021) at 15.

21. Section 75(v) of the Constitution – which confers jurisdiction on the High Court in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth – "secures [that] basic element of the rule of law"[87]. The individual who is subject to the exercise of public power is "provided with a mechanism to challenge the lawfulness of the exercise of official power"[88].

    [87]Plaintiff S157 (2003) 211 CLR 476 at 482-483 [5].

    [88]French, "Administrative Law in Australia: Themes and Values Revisited", in Groves (ed), Modern Administrative Law in Australia: Concepts and Context (2014) 24 at 29. See also Plaintiff S157 (2003) 211 CLR 476 at 482-483 [5].

22. In Australia, the separation of the judicial power of the Commonwealth from executive and legislative powers by Ch III of the Constitution recognises the "deeply rooted notions of the relationship of the individual to the state going to the character of the national polity created and sustained by the Constitution"[89]. Chapter III of the Constitution "reflects and protects"[90] that relationship, recognising that Ch III is the "only general guarantee of due process" in a controversy between the Executive and the individual[91]. Where, as here, the law is concerned with the exercise of executive power, "judicial review is a principal engine of the rule of law"[92].

    [89]Magaming v The Queen (2013) 252 CLR 381 at 400 [63].

    [90]Magaming (2013) 252 CLR 381 at 401 [67].

    [91]Magaming (2013) 252 CLR 381 at 400 [64], quoting Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580. See also Plaintiff S157 (2003) 211 CLR 476 at 513‑514 [104]; R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 at 981-982 [56]; In re McGuinness [2021] AC 392 at 415 [64].

    [92]R (Cart) v Upper Tribunal(Public Law Project intervening) [2011] QB 120 at 137 [34]. See also R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663 at 680 [30]; R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 at 543 [116], 571 [190]; Gageler, "The Constitutional Dimension", in Groves (ed), Modern Administrative Law in Australia: Concepts and Context (2014) 165 at 175.

23. As Brennan J said in Church of Scientology v Woodward[93]:

    "Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly". (emphasis added)

    [93](1982) 154 CLR 25 at 70. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [No 1] (1997) 72 ALJR 574 at 577 [18]; 151 ALR 711 at 715; Plaintiff S157 (2003) 211 CLR 476 at 492 [31], 513-514 [104]; Combet v The Commonwealth (2005) 224 CLR 494 at 579 [167]; Argos Pty Ltd v Corbell (2014) 254 CLR 394 at 411 [48]; Graham (2017) 263 CLR 1 at 24-26 [39]-[44].

24. Judicial review ensures that the Executive does not exceed its powers[94]. It ensures that decision-makers "obey the law and neither exceed nor neglect any jurisdiction which the law confers on them"[95]. In particular, it ensures that decision-makers stay within the limits (express or implied) of the decision‑making power conferred by statute. Judicial review recognises the importance of the Executive acting within lawful authority: that public power is not to be exercised against an individual in a way that is contrary to law. It recognises that the executive power of the Commonwealth is "exercised at a functional level by Ministers and by other officers of the Executive Government" and that in the exercise of those powers, they can and do err[96].

    [94]Plaintiff S157 (2003) 211 CLR 476 at 492 [31], 513-514 [104]. See also Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 535 [134], 546 [181]; 376 ALR 575 at 608-609, 622.

    [95]Plaintiff S157 (2003) 211 CLR 476 at 514 [104]. See also Crawford and Boughey, "The Centrality of Jurisdictional Error: Rationale and Consequences" (2019) 30 Public Law Review 18 at 30-31, 34-35.

    [96]Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 95 [128]; see generally 92-96 [119]-[128].

25. In addition, and of no less significance, it recognises that the Executive cannot itself authorise a breach of the law. Not only does the rule of law require that the Executive act within legal authority, but as this Court has repeatedly stated[97], in various ways and in various contexts, "[i]t is fundamental to our legal system that the executive has no power to authorize a breach of the law"[98].

    [97]Clough v Leahy (1904) 2 CLR 139 at 155-156; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 187; A v Hayden (1984) 156 CLR 532 at 540, 550; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 157 [56]; Ruddock v Taylor (2005) 222 CLR 612 at 644‑645 [120]; Plaintiff M68 (2016) 257 CLR 42 at 98 [135].

    [98]A v Hayden (1984) 156 CLR 532 at 540.

26. In cases of the kind under consideration in this appeal, public power has been exercised in a way that disadvantages an applicant – an individual. Once the individual shows a departure from the lawful exercise of power and that the departure might realistically have affected the outcome of a decision, the individual cannot be expected or required to show that they would have obtained a favourable exercise of statutory power but for the departure. It is for the decision‑maker to show that the individual would not have done so.

27. The relationship between members of the public and the Executive, and the idea that underpins it, was described by Boughey and Weeks as "government accountability": "one of the key 'values' or 'ideals' that administrative law is designed to uphold"[99]. It is said to encapsulate[100]:

    "the basic idea that the executive branch and its delegates must be answerable, and as a general principle justify their actions, to the public, the Parliament, the courts or any administrative agency (ombudsmen, tribunals, anti‑corruption agencies etc)."

    [99]Boughey and Weeks, "Government Accountability as a 'Constitutional Value'", in Dixon (ed), Australian Constitutional Values (2018) 99 at 99.

    [100]Boughey and Weeks, "Government Accountability as a 'Constitutional Value'", in Dixon (ed), Australian Constitutional Values (2018) 99 at 103.

1. Just as long‑standing assumptions form the basis for an implication of statutory conditions upon power, so too do the long‑standing assumptions about materiality form the basis for an implication that non‑compliance with those conditions will not lead to invalidity unless the non-compliance is material. In Nobarani v Mariconte[251], this Court recognised the equivalence of (i) the requirement of a "substantial wrong or miscarriage" before a new trial will be ordered and (ii) the materiality requirement in judicial review before non‑compliance with a statutory condition will lead to invalidity of the decision. In both cases, the question is whether a new trial or hearing should not be granted despite the miscarriage or error of law.

   [251](2018) 265 CLR 236 at 247 [38]. See also BVD17v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1104‑1105 [66]-[68]; 373 ALR 196 at 212‑213. See further Wehbe v Minister for Home Affairs (2018) 92 ALJR 1033 at 1037 [24]; 361 ALR 1 at 6; OKSv Western Australia (2019) 265 CLR 268 at 280‑281 [34].

2. In the same manner as the rules that have developed in relation to new civil or criminal trials, and subject to any express statutory provision to the contrary, some errors or failures to comply with statutory conditions will always involve a material breach irrespective of whether the result might have been inevitable. One type of statutory condition that will always involve material non‑compliance is a duty to make the ultimate decision within the bounds of legal reasonableness[252]. A decision that is legally unreasonable will, by definition, involve an error that is not trivial or harmless.

   [252]Rather than other duties or powers: see Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 61 [26]; 385 ALR 212 at 220; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 958 [125]; 383 ALR 407 at 443.

3. A different type of statutory condition that will always involve material non-compliance is where the non-compliance is fundamental to the hearing process. For instance, just as it was said of new criminal trials in Weiss, it could be no answer to an extreme denial of procedural fairness in an administrative hearing to say that if the applicant had been given the opportunity to put their case then the case would inevitably have failed[253]. Nor could it be an answer to a hearing tainted by actual or apprehended bias to say that the case would inevitably have failed before an impartial decision‑maker. In the language of the United States decisions, bias is a ground that is so fundamental that it will "defy harmless‑error review"[254].

   The implication of the onus concerning materiality

   [253]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 137 [40], 147‑148 [72].

   [254]Neder v United States (1999) 527 US 1 at 8-9.

   The onus where a new civil or criminal trial is sought

4. As a matter of principle, the role of legislative intention should not be limited to discerning the existence of statutory conditions and the requirement for non-compliance with statutory conditions to be material. It should also extend to discerning the party who bears the onus of proving materiality or immateriality. The consequence of the onus of proof being a matter of expression or implication of legislative intention is that the onus of proof of materiality or immateriality must depend on the statutory context. As explained in the introduction to these reasons, this is the position that has been reached in the United States.

5. Many statutes will contain little or no indication to guide a court as to which party bears the onus of proof. The legislative intention in these circumstances can only be based upon assumptions derived from the historical matrix of common law and statute. Like the history of the materiality requirement which established materiality as a usual assumption, the Australian history of the onus of proof has established that the onus is generally borne by the party opposing a new trial or a new hearing. That is, the onus is generally to prove immateriality, not to prove materiality.

6. The common law need not have taken this path. Indeed, the judicature rule, in its literal terms which provided that "[a] new trial shall not be granted ... unless"[255], could have comfortably been understood as placing the onus upon the party seeking a new trial. But the onus of proof was not generally understood in this way. An early case involving the recognition that the onus is to prove immateriality and not for an applicant to prove materiality, described by Wigmore as a "model example"[256], was the decision of Porter J in People v Fernandez[257], where he said:

   "there is no distinction between civil and criminal cases. The reception of illegal evidence is presumptively injurious to the party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt, that the result would have been the same if the objectionable proof had been rejected, the error furnishes no ground for reversal."

   [255]Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66), Schedule, r 48 (emphasis added).

   [256]Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed (1940), vol 1 at 368.

   [257](1866) 35 NY 49 at 59.

7. In Australia it is established beyond doubt in relation to the common form proviso in criminal law that the onus of proof lies upon the State to establish that no substantial miscarriage of justice has occurred[258]. As McHugh J said in TKWJ v The Queen[259]:

   "Cases on the proviso operate on the hypothesis that there has been a legal error that prima facie requires the conviction to be set aside. The issue then becomes whether the Crown has shown that no substantial miscarriage of justice occurred because the error could not have affected the result of the trial."

   [258]Mraz v The Queen (1955) 93 CLR 493 at 514; TKWJ v The Queen (2002) 212 CLR 124 at 143 [63]; Lindsay v The Queen (2015) 255 CLR 272 at 294 [64].

   [259](2002) 212 CLR 124 at 143 [63].

8. For a period of time, however, the opposite view prevailed in relation to civil trials. In Holford[260], Cussen J said that it was sufficient for the party seeking a new trial to demonstrate that the jury may have been influenced by the misdirection and then continued:

   "The plaintiffs' counsel contended that the onus of showing the miscarriage is on the party asking for the new trial. I think this is clearly right, but I think that onus is satisfied when the facts appear to be as above set out, and that unless the party opposing the grant of the order for a new trial can point to some further fact, the conclusion that there was a miscarriage must be drawn."

   [260][1909] VLR 497 at 526 (italics in original).

9. This approach to the onus of proof, whilst conforming with the literal terms of the judicature rule, did not last, at least in jurisdictions such as New South Wales which were governed by the common law rule rather than the judicature rule. As Dixon CJ observed in Balenzuela v De Gail[261], historically there had been cases, like Holford, that placed the onus upon the party seeking a new trial to establish that the error might possibly have affected the result. But there were many cases where the burden was upon the party resisting the new trial. The "accepted practice in New South Wales" was the latter[262]. In the passage from which Dixon CJ quoted, this accepted practice was described in terms that plainly placed the onus upon the party resisting the new trial[263]:

   "[T]he court would as a rule grant a new trial where evidence had been improperly admitted: but that in its discretion the court might refrain from granting a new trial if it was affirmatively satisfied that the actual verdict returned could not have been affected by the inadmissible evidence."

   [261](1959) 101 CLR 226 at 233-234.

   [262](1959) 101 CLR 226 at 234, quoting Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 563 and citing Macleod v Attorney-General (NSW) (1890) 11 LR (NSW) 218; [1891] AC 455 and Makin v Attorney-General (NSW) [1894] AC 57.

   [263]Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 563.

10. The accepted practice in New South Wales had previously been applied by Dixon J, who spoke of how "the prima-facie right to a new trial is displaced" by an error that "cannot reasonably be supposed to have affected the result"[264]. In Balenzuela, whilst Dixon CJ doubted whether the question of onus of proof was really of any importance, he reiterated that the "true view" was that[265]:

    "at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result".

    [264]Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 554.

    [265](1959) 101 CLR 226 at 234‑235.

11. It is plain beyond argument that in the passage above Dixon CJ was approving the accepted practice in New South Wales as the common law rule that the onus of proof lay upon a party asserting that there should be no new trial because the error could not reasonably be supposed to have influenced the result. Indeed, his Honour also observed that "the burden is the other way" in the language of the judicature rule, which suggested "an intention that the court should not grant a new trial ... unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error"[266]. The Chief Justice concluded his discussion of this point by saying that the location of the onus may form one distinction between the common law and the judicature rule. He endorsed the view in Best on Evidence[267] that the distinction between the common law and the judicature rule was that "[f]ormerly, where evidence had been improperly admitted or rejected, a new trial was granted, unless it was clear that the result would not have been affected; but this rule is reversed by the [judicature rule]".   

    [266](1959) 101 CLR 226 at 235.

    [267]Phipson and Best, The Principles of the Law of Evidence, 12th ed (1922) at 70.

12. In Balenzuela, Dixon CJ separately considered whether there was "[a]nother distinction" (ie a different distinction) between the judicature rule and the common law, being that "a rather more substantial wrong or miscarriage has been required under the judicature rule than had been required at common law"[268]. Unlike the distinction on the point of onus, Dixon CJ thought that this other alleged distinction was "doubtful" and considered that what Higgins J had said in Robinson & Vincent Ltd v Rice[269] was "justified in substance", namely that the position under the judicature rule was the same as that at common law before the Common Law Procedure Act 1852[270] as applied subsequently in England and New South Wales. The Chief Justice was here making a different point about the extent of a substantial miscarriage that was required. He was not contradicting what he had said immediately beforehand about the onus of proof being borne by the party alleging immateriality.

    [268](1959) 101 CLR 226 at 235.

    [269](1926) 38 CLR 1 at 10.

    [270]15 & 16 Vict c 76.

13. Nor did Dixon CJ directly contradict himself in relation to the distinction that he recognised between the common law and the judicature rule in the next paragraph when he said that a new trial should be ordered because the "basal fact is that material evidence was erroneously excluded from the consideration of the jury"[271]. His concern with "material evidence" was a concern with whether an error had been established at all, not with the materiality of the error. And as Dixon CJ said earlier in his reasons[272]:

    "When material evidence has been erroneously rejected at the instance of the party who succeeds, then to deny nevertheless to the unsuccessful party the remedy of a new trial the Court must have some sure ground for saying that the reception of the evidence would not have affected the result or that it ought not to have done so."

    [271](1959) 101 CLR 226 at 236.

    [272](1959) 101 CLR 226 at 232.

14. The other Justices in Balenzuela all took the same approach as Dixon CJ, stating the rule in terms which effectively described it as one of an entitlement to a new trial unless the court was satisfied that the error could not have affected the verdict of the jury. In particular, Kitto J said that a new trial had to be granted unless the jury could not have been led by the rejected evidence to find for the plaintiff[273]. Windeyer J, who agreed with Dixon CJ, added that although questions of onus would not often be decisive, the position in New South Wales differed from the judicature rule – where the onus might be on the appellant – because in New South Wales an error of law "prima facie furnishes a ground for a new trial"[274].

    [273](1959) 101 CLR 226 at 237.

    [274](1959) 101 CLR 226 at 244-245. See also at 238 (Taylor J), 239 (Menzies J).

15. The general rule for the onus in civil cases was thus settled in Balenzuela and not doubted subsequently. It was borne by the appellant who successfully opposed a new trial in McLellan v Bowyer[275]. It was again borne by the appellant who successfully opposed a new trial in Mann v Dumergue[276], where this Court accepted that a new trial must be granted unless the Court was prepared "to go so far" as to conclude that the wrongly rejected evidence could not have affected the verdict. Balenzuela, McLellan, and Mann were all cited by this Court in Dairy Farmers Co-operative Milk Co Ltd v Acquilina[277], where the Court added that the position was the same as that laid down in Crease v Barrett[278]. The Court could not have meant, by its reference to Crease v Barrett, to resurrect the heretical Exchequer rule and to abolish the doctrine of trivial error. Its focus must instead have been upon the remarks of the Court in that case that however strong the Court's opinion may have been on the "propriety of the present verdict" it could not say – that is, the Court was not satisfied that it had been shown – that the wrongful exclusion of evidence "would have had no effect with the jury"[279].

    [275](1961) 106 CLR 95.

    [276]Unreported, High Court of Australia, 22 August 1963 at 3-4.

    [277](1963) 109 CLR 458 at 463.

    [278](1835) 1 Cr M & R 919 [149 ER 1353].

    [279]Crease v Barrett (1835) 1 Cr M & R 919 at 933 [149 ER 1353 at 1359].

16. It was against this background that this Court decided Stead v State Government Insurance Commission[280]. In the course of ordering a new trial following a denial of procedural fairness, the Court said[281]:

    "All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result."

    It is not entirely clear what the Court meant by the suggestion that the appellant needed to show that the denial of natural justice had "deprived him of the possibility of a successful outcome". The most likely meaning is that by showing the possibility of a different outcome, the appellant could establish that what might otherwise be a mere procedural irregularity would amount to a failure of a statutory condition. If the failure in that case to allow the appellant the opportunity to make submissions had concerned a matter that was entirely trivial then the failure might not have reached the threshold of procedural unfairness. But since the submissions might have affected the outcome, the denial of that opportunity established procedural unfairness. The onus then was borne by the respondent to show immateriality, namely that "a properly conducted trial could not possibly have produced a different result".

    [280](1986) 161 CLR 141.

    [281](1986) 161 CLR 141 at 147.

17. The very next paragraph of the decision confirms this meaning. Referring to the passages of the decision of Dixon CJ in Balenzuela[282] discussed above in these reasons, their Honours said that a new trial was ordered in that case because "material evidence was wrongly rejected" (ie an error was established) but that it "would have been otherwise had the respondent been able to demonstrate that the rejected evidence could have made no difference to the result"[283].

    [282](1959) 101 CLR 226 at 232, 235.

    [283]Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (emphasis added).

    The onus in relation to materiality in judicial review

18. Although the decision in Stead concerned an application for a new civil trial, it has been relied upon in hundreds of applications where an applicant for judicial review sought a new hearing on the basis of a decision‑maker's failure to comply with an express or implied statutory condition. The approach taken in Stead was expressly adopted by all members of this Court in Re Refugee Review Tribunal; Ex parte Aala[284]. In that case, the issues for decision were clearly separated into two distinct questions. First, had there been a denial of procedural fairness? Secondly, was the breach material? All members of the Court concluded that there had been a denial of procedural fairness. And, although McHugh J concluded that the breach was not material, all members of the Court understood Stead to have imposed the onus of proof upon the party asserting that the non‑compliance was immaterial. Hence, the various judgments expressed the approach to materiality in terms of: whether it could "be concluded" that the breach made no difference to the result[285] (Gleeson CJ); whether the court had "satisf[ied] itself" that the breach made no difference to the result[286] (McHugh J); whether the "victim of the breach", who is "ordinarily entitled to relief", is to be denied that relief because the court had been "convince[d]" that the breach made no difference[287] (Kirby J); or whether the court can positively "say that a different result would not have been reached"[288] (Callinan J). Although Gaudron and Gummow JJ, with whom Hayne J agreed on this point[289], did not expressly decide whether the condition on the statutory power requiring procedural fairness was one which denied jurisdictional error for a trivial breach or whether the triviality of breach led to refusal of relief as a matter of discretion[290], the onus of proof in either case would have been the same. The onus of proof for the exercise of a discretion to refuse relief is upon the party so asserting[291].

    [284](2000) 204 CLR 82.

    [285](2000) 204 CLR 82 at 88 [4].

    [286](2000) 204 CLR 82 at 122 [104].

    [287](2000) 204 CLR 82 at 130-131 [131].

    [288](2000) 204 CLR 82 at 155 [211].

    [289](2000) 204 CLR 82 at 144 [172].

    [290](2000) 204 CLR 82 at 109 [59].

    [291]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 459 [93].

19. Against all of these authorities stands a single sentence in a joint judgment of three members of this Court in SZMTA[292], making a point which was not necessary for the decision and was not argued, meaning that the point cannot be authority[293]: "There is also no dispute between the parties that it is the applicant for judicial review of the decision of the Tribunal who bears the onus of proving that a jurisdictional error has occurred". That common assumption in SZMTA was incorrect.

    [292](2019) 264 CLR 421 at 444 [41].

    [293]R v Warner (1661) 1 Keb 66 at 67 [83 ER 814 at 815]; Felton v Mulligan (1971) 124 CLR 367 at 413; Baker v The Queen [1975] AC 774 at 787-789; Coleman v Power (2004) 220 CLR 1 at 44‑45 [79]; CSR Ltd v Eddy (2005) 226 CLR 1 at 11 [13]. See also Cross and Harris, Precedent in English Law, 4th ed (1991) at 158‑161.

    The circumstances of this case

1. Part 7 of the Migration Act was enacted within the common law context described above. In 2002, s 422B was inserted into the Migration Act[294] to provide that provisions including Div 4 of Pt 7, concerning the conduct of the review, "are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with". The provisions imply, by the long‑standing assumptions sometimes loosely described as "a common law principle of interpretation"[295], rules of procedural fairness, materiality, and onus of proof. No submission was made by the Minister to suggest that anything in the history or context of Pt 7 supported the onus of proof of materiality being borne instead by the applicant.

   [294]Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1, item 6.

   [295]Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 442 [34].

2. Strictly, the appellant is correct in relation to the first ground of appeal: Mortimer J, understandably following the approach of three Justices of this Court in SZMTA, was wrong to impose an onus of proof of materiality on the appellant. But, as the Minister submitted, the decision of Mortimer J should be upheld on the basis that her findings of fact were correct.

3. The Minister conceded before Mortimer J, as he did before this Court, that the failure to disclose the s 438 notification was a breach of the implied statutory condition of procedural fairness. But the Minister supported the conclusion of Mortimer J that the only manner in which any failure to afford procedural fairness could realistically have resulted in a different decision would be if disclosure of the notification might have led to the appellant making submissions about the documents or information, relevantly the Court Outcomes Report, that were the subject of that notification[296]. Whether those submissions would have made any difference depended upon whether the Tribunal had taken the Court Outcomes Report into account at all.

   [296]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [39].

4. This is not a question which could realistically be affected by the location of the substantive onus of proof. Once the issue was raised by the Minister, the question was simply whether the Court Outcomes Report had any effect on the Tribunal's decision. If it did, then the decision might have been different. If it did not, then the decision would not have been different.

5. An assessment of whether the Court Outcomes Report had any effect on the Tribunal's decision is not affected by the application of any presumption. As Mortimer J correctly observed, the materiality issue would be convoluted and confusing, and a true obstacle to the appellant, if it were to be presumed that the absence of any mention of the appellant's criminal record meant that it had no effect on the Tribunal's decision[297]. Such a presumption, if recognised, is a standardised inference. It would permit inference from common experience that the failure by the Tribunal to refer to a matter meant that the matter had not been considered to have any effect at all on the decision[298]. No such common experience exists. Further, the obligation upon the Tribunal to set out reasons for decision and to make findings on any material question of fact[299] did not require the Tribunal to express in its reasons every matter that had any effect on its reasoning in a review, particularly for a review that, as was then provided, was required to be "fair, just, economical, informal and quick"[300].

   [297]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [48]‑[49].

   [298]See Thorne v Kennedy (2017) 263 CLR 85 at 101 [34], citing Calverley v Green (1984) 155 CLR 242 at 264.

   [299]Migration Act, ss 430(1)(c), 430(1)(d). See, similarly, DL v The Queen (2018) 266 CLR 1 at 12 [32].

   [300]Migration Act, s 420(1).

6. Nevertheless, the failure by the Tribunal to refer to a matter in its reasons is a circumstance from which an inference might be drawn that the matter had no effect on the Tribunal's reasons. In other words, the failure "may indicate that the Tribunal did not consider the matter to be material"[301] and it would entitle, but would not require, the inference to be drawn[302]. In short, however, any inference must be based upon all of the circumstances.

   [301]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 330 [5] (emphasis added).

   [302]Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69].

7. In addition to the absence of any express reference by the Tribunal to the Court Outcomes Report, there are four other circumstances that support the inference that the Court Outcomes Report had no effect on the Tribunal's reasons. First, before the Tribunal could take the Court Outcomes Report into account it would have been required positively to exercise its discretion under s 438(3)(a) of the Migration Act to have regard to matters contained in a document that is the subject of a notification under s 438. The Tribunal made no mention of the exercise of that discretion. Secondly, the information in the Court Outcomes Report was of marginal relevance to the issues before the Tribunal. To the extent that the Court Outcomes Report had potential to impact upon the appellant's credibility, the "state false name" offence of dishonesty was, as Mortimer J said, "buried" in the Court Outcomes Report along with the appellant's other driving and alcohol‑related offences[303]. Thirdly, the Tribunal did not reach any positive conclusion that the appellant lied in relation to any issue. As Mortimer J said, although the Tribunal rejected some of the appellant's evidence as not being "credible or plausible", this was a finding of objective unlikelihood of the evidence independently of any suggestion that the appellant was a person who should not be believed[304]. Fourthly, the Tribunal accepted significant parts of the appellant's evidence. The Tribunal accepted that there had been a dispute between the appellant's father and the appellant's uncle. The Tribunal accepted the appellant's evidence about being taken to a house by his cousin and drugged and held there until a ransom was paid for his release. The Tribunal accepted that the appellant's family had disowned him and accepted the evidence of the appellant that this was because he had cut his hair and had "adopted the Australian lifestyle and started drinking alcohol".

   [303]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [55].

   [304]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [56].

8. The appellant also relied upon the opening remarks made by the Tribunal in the initial, but later revoked, decision in September 2014 that the Tribunal had "considered all the material before it relating to [the appellant's] application". This statement should not be taken to suggest a treatment by the Tribunal of the Court Outcomes Report as material that it had considered. Rather, the statement by the Tribunal that it had considered all the material before it demonstrated its consideration of whether it should decline to offer an interview to the appellant and should instead "decide the review in the [appellant's] favour on the basis of the material before it"[305]. Indeed, this initial decision, like the decision given after the appellant had been properly afforded the opportunity of an interview, contained no reference to the Court Outcomes Report. The Tribunal described the evidence before it as "extremely limited and vague".

   [305]Migration Act, s 425(2)(a).

9. The appellant relied upon the decision of this Court in Kioa v West[306] for the submission that even if relevant material had not been considered by the decision‑maker, it was enough that the material was before the decision‑maker for an obligation of procedural fairness to arise, entitling the appellant to make submissions about it. An issue in Kioa v West concerned s 5(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and whether Mr Kioa had been denied procedural fairness by not being given the opportunity to make submissions in relation to an adverse statement in material that had not affected the reasoning of the delegate. The language of s 5(1)(a) imports the usual principle of natural justice and hence the usual rules of procedural fairness. As Mason J said, the Act was not intended "to work a radical substantive change in the grounds on which administrative decisions are susceptible to challenge at common law"[307]. Brennan J also observed that "there is no reason to construe in a novel manner provisions which state in familiar terms the well-known grounds of judicial review"[308].

   [306](1985) 159 CLR 550.

   [307](1985) 159 CLR 550 at 577.

   [308](1985) 159 CLR 550 at 625.

10. The reasoning in Kioa v West is, however, inapt to the circumstances of this appeal. No issue of materiality was raised in Kioa v West by the Minister. The case was argued on the premise that if the rules of procedural fairness applied and were breached then the decision should be set aside[309]. It was not submitted that the result would inevitably have been the same if Mr Kioa had been given the opportunity to make submissions about the paragraph containing the adverse statement. In any event, such an argument would not likely have succeeded. The adverse statement was "extremely prejudicial"[310] and created "a real risk of prejudice, albeit subconscious" such that it was "unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information"[311]. For the same reasons, information, albeit of a more prejudicial nature, was held by a majority of this Court to give rise to an apprehension of bias in CNY17 v Minister for Immigration and Border Protection[312].

    [309](1985) 159 CLR 550 at 603.

    [310](1985) 159 CLR 550 at 588. See also at 602.

    [311](1985) 159 CLR 550 at 629.

    [312](2019) 94 ALJR 140; 375 ALR 47.

11. The appellant's second ground of appeal – that Mortimer J had erred in concluding that only dishonesty offences were capable of adversely impacting upon the credibility of the appellant before the Tribunal – can be dealt with briefly. Her Honour's conclusion that there was nothing in the Tribunal's reasons for decision that suggested that its reasoning was affected by the presence of the "state false name" dishonesty offence reflected the appellant's own "appropriately restrained" approach, which asserted that this was the only information the subject of the s 438 notification that might have made a difference[313]. But even if the appellant's case had been put more broadly, and had relied upon all of the information in the Court Outcomes Report as matters to which submissions by the appellant might have made a difference, that submission would have failed due to Mortimer J's correct conclusion that the Tribunal did not consider any of the Court Outcomes Report.

    [313]MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [54], [57].

    Conclusion

12. The appeal must be dismissed with costs.