Diverging views on the question of materiality in judicial review proceedings in the Federal Court

In Hong v Minister for Immigration and Border Protection, handed down on 5 April 2019, a Full Court of the Federal Court considered when the Administrative Appeals Tribunal will fall into jurisdictional error by failing to consider a faintly advanced ‘other reason’ why a decision to cancel a visa should be revoked under s 501CA(4) of the Migration Act 1958 (Cth). Each of the judgments given by the Court (Bromwich and  Wheelahan JJ, Logan J dissenting) contains an interesting discussion of the source and extent of an administrative decision maker’s obligation to consider the case put before it by a person whose interests are liable to be affected by its decision. Perhaps more importantly, the judgments treat the question of ‘materiality’ (as discussed by the High Court in Hossain v Minister for Immigration and Border Protection and Minister for Immigration and Border Protection v SZMTA) in what appear to me to be markedly different ways. This aspect of the judgments suggests that there is a significant divergence in the way different judges of the Federal Court understand the concept of materiality as it falls to be applied in the context of an application for judicial review based on a decision maker’s failure to consider all of the component integers of a case that, on its face, appears to be unsupported (or only weakly supported) by objective evidence. It is likely that this divergence will be revisited by the Federal Court (and ultimately by the High Court) in the near future.

The facts

In Hong, the appellant was a citizen of the People’s Republic of China who held a partner visa authorising her to live and work in Australia. In 2016, she was convicted of offences against the Firearms Act 1996 (NSW) and the Customs Act 1901 (Cth). As a result, a delegate of the respondent Minister decided under s 501(3A) of the Migration Act to cancel the appellant’s visa. She applied for revocation of the delegate’s decision. As part of the process of making this application, the appellant completed a ‘Personal Circumstances Form’. In a section of the form headed ‘Impediments to Return’, the appellant marked a box indicating that she had ‘concerns or fears’ about what would happen to her if she returned to the PRC and stated that before leaving that country, she ‘was helping people from organisation of social justice called Falong [sic] Gong … I may loose [sic] my job if I continue. If someone use this against me I may never find a job.’ Nevertheless, the Minister’s delegate declined to revoke the cancellation of the appellant’s visa and she applied to the Administrative Appeals Tribunal under s 500(1)(ba) of the Migration Act for review of this decision. At an oral hearing before the Tribunal, the appellant gave evidence and submissions were made on behalf. However, the issue of the appellant’s claimed participation in the Falun Gong discipline was not discussed at the hearing and the Tribunal decided to affirm the decision of the Minister’s delegate not to revoke the cancellation of her visa.

The appellant applied to the Federal Court for judicial review of the Tribunal’s decision, on the grounds that her written claim of involvement in the Falun Gong discipline had been advanced as ‘another reason’ why the decision to cancel her visa should be revoked and that the Tribunal had fallen into jurisdictional error by failing to consider this aspect of her case. That application was dismissed and the appellant appealed to a Full Court.

The judgments in the Full Court

The question when the Tribunal will fall into jurisdictional error by failing to consider a ‘claim’ advanced by a visa applicant has been given extensive consideration by both the High Court and the Federal Court, particularly in the context of claims relating to refugee status. As Logan J noted in his dissenting judgment, considered as a general proposition (and in isolation from any specific statutory provisions regulating the exercise of the decision maker’s jurisdiction), the obligation of a decision maker to consider each component integer of a case advanced by a party whose interests are liable to be affected by an administrative decision can be viewed as one arising from an implied statutory obligation to afford the party a fair and meaningful opportunity to be heard, as one that arises from a statute’s implied treatment of the applicant’s case as a mandatory consideration to which the decision maker must have regard before making its decision or, more fundamentally, as one arises from the decision maker’s obligation to embark upon and complete the process of evaluating allegations and evidence and making findings of fact that lies at the heart of any exercise of power that is apt to affect the rights or interests of an individual. The oft-cited statement of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs that to ‘fail to respond to a substantial clearly articulated argument relying upon established facts was at least to fail to afford [the applicant] natural justice’ is an example of the first approach, while Allsop J’s statement in Htun v Minister for Immigration and Multicultural Affairs that ‘[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration’ is an example of the second. The judgment of the Full Court in Minister for Immigration and Border Protection v MZYTS reflects the third approach. Where it is sought to challenge a decision for jurisdictional error on the grounds that an aspect of the applicant’s case was not considered by the decision maker, the most advantageous characterisation of the alleged error may depend on the specific terms of the statute under which the relevant decision was made. For example, where provisions like ss 357A and 422B of the Migration Act are involved, a natural justice-based analysis may be of little assistance.

After referring to Dranichnikov and Htun, Bromwich and Wheelahan JJ characterised the question posed by the appellant’s appeal as whether it was ‘enough for a claim to be advanced before the Tribunal, so as to require it to be considered as part of its irreducible jurisdictional task, for the appellant to rely upon two sentences in the original personal circumstances form accompanying the appellant’s visa cancellation revocation request.’ Their Honours answered this question in the negative, stating that the Falun Gong claim was ‘qualified, equivocal, contingent, and lacking any substance without more information.’ Thus their Honours approached the question from the last of the three perspectives outlined above and concluded that because the Falun Gong claim had only been faintly raised and had not been pursued at all during the hearing before the Tribunal, the Tribunal’s failure to address it did not involve a fundamental failure to perform its jurisdictional function. In any event, concluded Bromwich and Wheelahan JJ, the Falun Gong claim was ‘objectively so insignificant’ and contained such ‘objective inadequacies’ that the failure to consider it was not material, in that it even if the Tribunal had considered the claim, this could not realistically have resulted in a successful outcome for the appellant. This approach to the question of materiality differs significantly from that recently taken by Colvin J in CNN16 v Minister for Immigration and Border Protection, in which his Honour stated that:

I am not persuaded that it would be an answer to a claim brought in the statutory context here under consideration that there had been jurisdictional error because the review task was not undertaken that the task did not extend to considering claims that did not meet some standard of merit as adjudicated by the court.

In dissent, Logan J stated that ‘[h]ad the Tribunal addressed the [Falun Gong] claim and the evidence and accepted the evidence, the claim as evidenced was capable of supplying “another reason” why the cancellation decision should be revoked.’ Because the facts alleged by the appellant in relation to her involvement in Falun Gong were, if accepted, capable of giving rise to an exercise of statutory power in her favour, the making by the appellant of those allegations imposed on the Tribunal an obligation to address them. Its failure to do so constituted jurisdictional error. His Honour considered that that error ‘might be characterised in a number of different ways – a failure to afford natural justice, a failure to take into account a relevant consideration and a constructive failure to exercise the review jurisdiction consigned to the Tribunal by the Act.’ On the question of materiality, Logan J took an approach that echoes that of Colvin J in CNN16, stating that ‘the reaching of a conclusion that an applicant for a constitutional writ or its equivalent has not been deprived of the possibility of a successful outcome calls for an exercise of principled restraint by the Court, lest the Court transgress impermissibly into the realm of merits review.’

What does this mean for materiality in Australian administrative law?

It seems to me that insofar as the question of the Tribunal’s obligation to consider the Falun Gong claim is concerned, the judgments in Hong simply reflect different evaluations of the significance of that claim in the context of the appellant’s application for review in the Tribunal. In Logan J’s view, the claim, though faintly expressed, was a genuine expression by the appellant of a reason why the cancellation of her visa should be revoked. In the majority’s view, the claim was so faintly expressed that it was not really part of the applicant’s case at all. This difference of opinion does not appear to me to reflect a difference in the three judges’ understanding of the relevant legal principles, but simply a difference in their evaluation of the facts of the appellant’s case.

On the question of materiality, however, it seems to me that Bromwich and Wheelahan JJ expressed an understanding of how that principle operates in the context of claims under the Migration Act that differs significantly from that expressed by Logan J (and by Colvin J in CNN16). On the approach adopted by the majority in Hong, it is open to a court engaged in judicial review of a decision made by the Tribunal under the Migration Act to closely analyse the evidence relied on by the applicant and decide whether that evidence could have been sufficient to satisfy the Tribunal that the outcome of its review should be favourable to the applicant. This goes substantially further than cases predating Hossain and SZMTA in which it has been held that the Tribunal will not fall into error by failing to consider a claim that, as a matter of law, could not possibly have established that the applicant was entitled to the visa in issue. The approach favoured by Logan J (and Colvin J) echoes these older cases and proceeds from the view that beyond determining whether a claim not considered by the Tribunal was legally capable of establishing an entitlement to a visa (or a case for the exercise of some discretion in the applicant’s favour), it is not part of the function of a court engaged in judicial review to assess the strength of the applicant’s case.

As Nettle and Gordon JJ noted in their dissenting judgment in SZMTA, the manner in which the majority expressed the concept of materiality in that case has ‘fundamentally change[d] the nature of judicial review’ in Australia. It is clear from the result in SZMTA that an Australian court engaged in judicial review of administrative action can now, at least to some degree, examine the merits of the applicant’s case before the decision maker and decide whether the applicant has established that that case could reasonably have been accepted by the decision maker. However, it appears to me that the approach favoured by Bromwich and Wheelahan JJ in Hong fails to give sufficient attention to the fact that an inquisitorial body like the Tribunal has the capacity (though generally not the duty) to act on evidence obtained from sources other than the applicant, including evidence in the form of newspaper and magazine articles. Thus, in some cases at least, the evidence relied on by an applicant in support of his or her application will not in and of itself be sufficient to reveal to a court engaged in judicial review whether or not the applicant’s claim had a realistic prospect of being accepted. This seems to be of particular relevance in a case like Hong, in which the appellant claimed to have supported a movement the treatment of which by the government of the PRC has been written about extensively in publicly available media. In any event, given the fundamental change in Australian administrative law effected by the majority’s approach to the question of materiality in SZMTA, it seems likely that this issue will be revisited by another Full Court (or by the High Court) in the near future.