High Court. Will there "generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration"? When a Tribunal "errs by denying a party a reasonable opportunity to present their case", does reasonable conjecture "require demonstration of how that party might have taken advantage of that lost opportunity"?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Did s 501CA(4) of the Migration Act 1958 (Cth) involve the exercise of a discretion?
Question 2: Can it be said that, "generally speaking, legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law"?
Question 3: Will there "generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration"?
Question 4: When a Tribunal "errs by denying a party a reasonable opportunity to present their case", does reasonable conjecture "require demonstration of how that party might have taken advantage of that lost opportunity"?
Question 5: Was there a "need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair"?
Question 6: Is a "serious denial of procedural fairness involving a denial of an opportunity to be heard in relation to an important issue in the context of an evaluative decision" an error that "is so egregious that it will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker"? In other words, is a serious denial of procedural fairness an error whose materiality need not be established in order for the error to be labelled "jurisdictional"?
Question 7: Can it be said that, "where the error is not fundamental ..., but where the procedure adopted can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure and jurisdictional error is made out unless it can be shown by a respondent to a judicial review application that the failure did not deprive the person of the possibility of a successful outcome"?
Question 8: Is a failure to exercise jurisdiction with respect to the correct criterion an error whose materiality need not be established in order for the error to be labelled "jurisdictional"?
Question 9: Is "an erroneous denial, or mistaken assertion, of jurisdiction over the matter or an important part of it" an error whose materiality need not be established in order for the error to be labelled "jurisdictional"?
The HCA answered those questions as follows: