Paul Cutler's Migration Case Law Blog

Since 2018, there have been a series of High Court cases (see Hossain, SZMTA and MZAPC) which have considered “materiality”. The basic proposition is that not only do Applicants have to find a jurisdictional error, but that error has to be material. This means that the Applicant bears the onus proof on the balance of probabilities to show that there was a realistic possibility that a different decision would have been made if the error hadn’t occurred.

It is now apparent from Nathanson v Minister for Home Affairs [2022] HCA 26 (the most recent High Court case on the topic) that in some circumstances the threshold of proving materiality will be  “almost nothing”.

Nathanson was (yet another) character cancellation matter. Ministerial Direction 65 was current at the time of his visa cancellation. By the time of his AAT hearing that had been superseded by Direction 79. One of the differences in the two, was a change to the way that “crimes of a violent nature against women or children are viewed” in 13.1.1(1)(b) (i.e. very seriously regardless of sentence). Nathanson had been a domestic violence perpetrator and he was told by the Member that the changes to para 13.1.1 were “very minor”. However, this didn’t stop the Minister making submissions about it and the issue becoming decisive. In other words, there was a serious breach of procedural fairness.

En route to the High Court, the primary judge and the Full Court applied SZMTA and MZAPC and found that despite the error, materiality hadn’t been proved.

Although the High Court found in this favour 6:0, there were different reasons among the judges. The easiest one to explain is the judgment of Gaegler J who basically found that a serious breach of procedural fairness is itself material. This is the type of complex public law issue which will keep academics occupied for a long time. If you want to read something more than my blog, here is a link to an excellent short article.

Creative commons acknowledgment for the photograph.