Federal Court (Full Court). Majority in SZMTA held that a denial of procedural fairness is only jurisdictional if it is material in that, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error? In order to discharge burden of proving materiality, must judicial review applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)? If the court can draw that inference, should it do so in the circumstances of this case?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: The majority of the High Court in SZMTA held that a denial of procedural fairness is only jurisdictional if, had procedural fairness been afforded, it could have resulted in a different outcome. Can that proposition be reconciled with Ex parte Aala, according to which even trivial denials of procedural fairness amount to jurisdictional error?
Question 2: The majority in SZMTA also held that judicial review applicants bear the onus of proving materiality. In order to discharge that burden, must those applicants lead evidence in court about what they would have done had the procedure been fair or can the court instead draw inferences of what they could have done (we previously described this as the Ibrahim / Nguyen tension)?
Question 3: If the court can draw that inference, should it do so in the circumstances of this case?
The FCAFC answered those questions as follows: