Materiality test: is threshold demanding or onerous?

Some of the questions to the High Court (HCA) were as follows:

Question 1: Can jurisdictional error "refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute"?

Question 2: Can jurisdictional error "result from breach by a third party of a condition of a statutory process preceding a decision"?

Question 3: Can an erroneous finding by an administrative decision maker amount to a jurisdictional even if the finding was one of fact?

Question 4: Does the determination of whether a jurisdictional error was made involve only two steps, namely: 1) determining whether an error was made (in the sense of a breach of an express or implied condition of the statutory conferral of decision‑making authority); 2) if so, whether the error was material to the outcome?

Question 5: Can it be said that "determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged in the statutory context within which the decision has been made"?

Question 6: Is apprehended or actual bias an example of error that will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact?

Question 7: Is unreasonableness in the final result an example of the potential for an effect on the decision that will be inherent in the nature of the error?

Question 8: Does the materiality test ask whether "there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred"?

Question 9: If the answer to Question 4 is 'yes', can it be said that "the inquiry posited by each question is wholly backward‑looking"?

Question 10: If the answer to Question 4 is 'yes', are those two steps questions that "are to be answered by reference to the decision that was made and, depending on the nature of the error, how that decision was made"?

Question 11: If the answer to Question 10 is 'yes', are those two facts "facts in respect of which the applicant for judicial review bears the onus of proof on the balance of probabilities"?

Question 12: If the answer to Question 11 is 'yes', is proof of those facts difficult or contentious?

Question 13: Can it be said that "what must be proved to show what decision was made and how it was made will depend upon the nature of the error"?

Question 14: Where the error alleged is breach of a condition governing the reasoning to be undertaken by the decision-maker, is the applicant's onus of proving the relevant facts discharged by nothing more than the tender of the decision‑maker's statement of reasons?

Question 15: Can it be said that, unless the error is of a type that is always material and therefore jurisdictional, "whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application"?

Question 16: In determining whether an error was material to the outcome, is the question "whether the decision that was in fact made could, not would, "realistically" have been different had there been no error"?

Question 17: Can it be said that, "though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous"?

Question 18: Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, may the court "readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind"?

Question 19: Can it be said that "a reviewing court does not engage in a review of the merits of the decision, reconstruct a decision‑making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision"?

Question 20: Can it be said that "each aspect of non-compliance with s 499(2A) [of the Migration Act 1958 (Cth)] was a particular of the one error – a breach by a statutory decision-maker of a condition governing the making of a decision, namely statutory non‑compliance with s 499(2A) of the Migration Act in failing to comply with Direction 90"?

Question 21: If the answer to Question 20 is 'yes', should the courts nevertheless consider the aggregate of each aspect of non-compliance with s 499(2A) to determine whether the non-compliance was material to the outcome?

Question 22: Can it be said that, although para 8.1.1(1)(a) and (b) of Direction 99 specified types of crime and conduct that are viewed as "very serious" and "serious" respectively, an assessment of the nature and seriousness of a non‑citizen's conduct does not yield discrete assessments, and that there is a spectrum of seriousness?

Question 23: Even though it might have been open to the Tribunal to reach a conclusion that the appellant's conduct was "very serious", Direction required the conduct to be seen as only "serious". The Tribunal's conclusion was affected by the Direction. Can it be said that the same outcome would have ensued in the absence of error?

The HCA answered those questions as follows: