Federal Court divided on the materiality test

Federal Court (Full Court): An error is only jurisdictional if material and only material if, had it not been made, the decision could have been different (HCA: Hossain). Materiality is a question of fact in respect of which judicial review applicants bear the onus of proof (HCA: SZMTA). It was incumbent on the appellant to demonstrate what would have occurred had the error not been made (FCAFC: Ibrahim). Differently constituted, the FCAFC disagreed with that aspect of Ibrahim, distinguished SZMTA and Hossain and reconciled the latter 2 cases with WZARH.

Summary and discussion

The Appellant's visa was cancelled under s 501(3A) of the Migration Act 1958 (mandatory character cancellation). That cancellation was then revoked under s 501CA by a delegate.

Subsequently, the Minister personally set aside the revocation under s 501BA(2), which read as follows:

501BA    Cancellation of visa––setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister––natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

In making the decision to set aside the revocation, the Minister thought that he was prevented by the above provisions from affording the Appellant procedural fairness.

The Appellant then applied to the Federal Court (FCA) for judicial review of the Minister's personal decision. A single judge of the FCA dismissed that application. The Appellant eventually appealed the single judge's decision to the Full Court of the FCA (FCAFC).

The questions to the FCAFC were as follows:

Question 1: was the Minister's decision legally unreasonable?

Question 2: should the previous ruling of the FCAFC (differently constituted) in Ibrahim according to which the Minister had made a jurisdictional error by reason of believing that he was precluded by s 501BA(2) from affording the appellant (in that case) procedural fairness be followed here?

Question 3: was this case distinguishable from Ibrahim?

Question 4: should the ruling in Ibrahim according to which it was incumbent on the appellant (in that case) to "demonstrate by evidence what would have, or may have, occurred had the relevant legal error not been made" be followed here?

The FCAFC answered as follows...

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