MZAPC v Minister for Immigration and Border Protection

D J Hooke SC with S H Hartford Davis, S G Lawrence and D J Reynolds for the appellant (instructed by Conditsis Lawyers)

S P Donaghue QC, Solicitor-General of the Commonwealth, with M A Hosking for the first respondent (instructed by Clayton Utz)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

MZAPC v Minister for Immigration and Border Protection

Immigration - Refugees - Application for protection visa - Where appellant applied to Refugee Review Tribunal ("Tribunal") for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) ("Act") - Where s 438 notification issued under Act in relation to material including appellant's criminal record - Where Tribunal did not disclose existence of s 438 notification to appellant - Where first respondent conceded failure to disclose amounted to breach of procedural fairness - Where information covered by s 438 notification not referred to in reasons for decision - Whether breach material - Whether Tribunal in fact took s 438 notification information into account in making decision - Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account - Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision - Whether appellant or first respondent bore onus of proof of materiality - Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences.

Words and phrases - "counterfactual inquiry", "credit", "discharging the burden of proof", "failure to disclose", "judicial review", "jurisdictional error", "lost opportunity to present legal and factual argument", "materiality", "onus of proof", "opportunity to be heard", "practical injustice", "presumption", "procedural fairness", "realistic possibility", "reasonable conjecture", "statutory interpretation", "subconscious impact", "threshold of materiality".

1. KIEFEL CJ, GAGELER, KEANE AND GLEESON JJ. This appeal raises issues concerning the content and proof of the element of materiality identified in Hossain v Minister for Immigration and Border Protection[1] as ordinarily required to exist for a breach of an express or implied condition of a conferral of statutory decision-making authority to result in jurisdictional error.
2. Materiality was subsequently explained in Minister for Immigration and Border Protection v SZMTA[2] to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
3. The explanation in SZMTA is sound in principle and consistent with precedent. SZMTA ought not to be revisited.
4. SZMTA was correctly applied in the result in the decision under appeal[3] to hold that a breach of an implied condition of procedural fairness by the Refugee Review Tribunal ("the Tribunal") in the conduct of a review under Pt 7 of the Migration Act 1958 (Cth) ("the Act") did not result in jurisdictional error in the decision of the Tribunal which affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a protection visa. The breach was constituted by a failure on the part of the Tribunal to disclose to the appellant the existence of a notification by the Secretary of the Department of Immigration and Border Protection under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary under s 418(3) of the Act.

1. The appellant is a citizen of India. He arrived in Australia in 2006 on a student visa which expired in 2008. He applied in 2007 for a further student visa which a delegate of the Minister refused in 2012. He then applied to the Migration Review Tribunal ("the MRT") for merits review of the decision of that delegate under Pt 5 of the Act. The MRT decided that it lacked jurisdiction because the application was lodged out of time. He then applied to the Federal Circuit Court for judicial review of the decision of the MRT. The Federal Circuit Court dismissed that application in 2013.
2. Having failed to obtain a further student visa, the appellant applied in 2014 for a protection visa. Amongst the claims he made in support of that application was a claim to fear that his uncle would kill him on his return to India in connection with a dispute between his uncle and his father over land in Punjab. He claimed that he was his father's oldest son and that his uncle had threatened to kill him if the land went under his name. He claimed that he had been kidnapped when visiting Punjab from Delhi in 2004. The kidnappers demanded that his father sign papers putting the land in their names. They released him after his father paid them a settlement amount.
3. Another delegate of the Minister refused the protection visa in June 2014. The appellant then applied to the Tribunal for merits review of that decision under Pt 7 of the Act.
4. As required by s 418(3) of the Act, the Secretary gave to the Tribunal documents within the Secretary's possession or control which the Secretary considered to be relevant to the review by the Tribunal. Accompanying the documents so given was a letter notifying the Tribunal under s 438(2)(a) that s 438(1)(b) applied to information contained in specified documents on a specified departmental file. By way of advice under s 438(2)(b), the letter expressed the view that the information should not be disclosed to the appellant or his representative because the information had been "shared by Victoria Police with the Department for investigative purposes only".
5. The documents specified in the notification included a "Court Outcomes Report" which indicated that the appellant had been convicted of offences in the Dandenong Magistrates' Court in September 2011. The offences of which he had been convicted were three counts of drink driving, eight counts of driving while disqualified, three counts of using an unregistered vehicle on a highway, two counts of using a vehicle not in a safe and roadworthy condition, one count of removing a defective vehicle label, one count of failing to wear a seat belt and one count of an offence described as "state false name". There is no dispute between the parties to the appeal that the offence described as "state false name" was an offence of dishonesty.

"Despite some concerns about the applicant's credibility, I am willing to accept that there was a dispute between his father and his uncle over land in Punjab. I accept that when the applicant visited Amritsar in 2003 or 2004, he was taken to a house by his cousin (though not actually threatened as he stated at the hearing), drugged and held there until his father arrived and paid the amount of $AUD3500 for his release. I accept that the applicant stopped going to the Punjab after this until he came to Australia in 2006.

I do not accept that the applicant has been subject to continuing threats in relation to the land dispute because he is the eldest son of his father. The applicant was able to reside in Delhi, India for 2-3 years after the Amritsar incident without facing any further harm from his uncles and his relatives. The Amritsar incident was 12-13 years ago and resolved when the father made payment to his uncle. Furthermore, on the applicant's oral evidence at hearing, in recent times his father has been pressured but not actually harmed or threatened by the relatives despite his father refusing to sign over the land through an affidavit. I do not accept that if the relatives wanted to harm the applicant over the land that they would not be threatening or harming his father in circumstances where the dispute originates in relation to the father and the father has the ability to sign a document giving them the land. I do not accept as credible or plausible that simply because his father was in Delhi and not Amritsar that this would completely deter the relatives from undertaking threatening or violent action against his father to obtain legal ownership of the land. The applicant stated at the hearing that his mother's brother was a policeman, which I accept. However, I do not accept as credible or plausible that the relatives would not threaten or harm his father (but would threaten or harm the applicant) because his mother's brother was a policeman. In all the circumstances, I do not accept that the relatives have a continuing adverse interest in the applicant.

Considering all the circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future in India for any reason ... from his relatives over the land dispute."

1. Like the statement of reasons for the initial decision, the statement of reasons for the final decision made no reference to the notification or to any information contained in any of the documents specified in the notification.
2. The appellant in due course applied to the Federal Circuit Court for judicial review of the final decision of the Tribunal. The Federal Circuit Court dismissed that application in 2016.
3. The appellant next appealed to the Federal Court. The appeal was held in abeyance pending the decision in SZMTA. Following that decision, the notice of appeal to the Federal Court was amended by consent to comprise a single ground of challenge to the final decision of the Tribunal. The single ground of challenge, which had not been raised before the Federal Circuit Court, was that the decision "was affected by jurisdictional error, in that the Tribunal failed to comply with the rules of procedural fairness".
4. There was no dispute between the appellant and the Minister before the Federal Court that the Tribunal's failure to disclose to the appellant the existence of the notification had breached an implied condition of procedural fairness identified in SZMTA. The parties to the appeal were at issue only as to the materiality of that breach to the final decision made by the Tribunal.

1. The Federal Court was constituted for the hearing of the appeal by Mortimer J alone. Her Honour recognised that the issue of materiality turned on whether disclosure to the appellant of the existence of the notification could realistically have resulted in the Tribunal having made a different decision[5].
2. Noting that the information covered by the undisclosed notification had been potentially contrary to the interests of the appellant, Mortimer J went on to accept that she could not conclude that disclosure of the notification could realistically have resulted in the Tribunal having made a different decision without first finding that the Tribunal had in fact taken information covered by the notification into account in making the decision[6]. That accords with the approach taken by the Full Court of the Federal Court earlier in MZAOL v Minister for Immigration and Border Protection[7] and more recently in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15[8].
3. Focusing on the potential for the offence of dishonesty referred to in the Court Outcomes Report covered by the notification to have borne on the Tribunal's rejection of the appellant's claim to fear harm in connection with the dispute over land in Punjab, and unable to find on the evidence before her that the offence of dishonesty had in fact been taken into account by the Tribunal in its findings in relation to that claim[9], Mortimer J dismissed the appeal.
4. Mortimer J arrived at that result with evident reluctance. Echoing concerns she had already raised[10] and was later to repeat[11] about the need to find materiality at all in order to establish jurisdictional error where a breach of a condition of procedural fairness has been found, her Honour described the explanation of materiality in SZMTA as "difficult to understand and apply" and described the process of reasoning required to find materiality as "convoluted" and "confusing"[12]. To an aspect of her Honour's criticism it will be necessary to return.

1. In his appeal by special leave to this Court, the appellant does not go so far as to challenge the need to find materiality at all in order to determine that a breach of an implied condition of procedural fairness has resulted in jurisdictional error. He confines his attention to the content of materiality and its proof.
2. By his principal ground of appeal, the appellant disputes that he needed to prove that the Tribunal in fact took information covered by the notification into account in making the decision in order to establish that the failure to disclose the notification was material to the decision. He argues that the explanation of materiality in SZMTA properly understood demanded no more of him than that he demonstrate by way of reasonable conjecture that the Tribunal could have taken information covered by the notification into account adversely to him in making the decision and that, if it did, it could have been persuaded by him to make a different decision if it had disclosed the notification to him. He argues that demonstration of the reasonableness of that conjecture caused the onus to shift to the Minister, as the party to the application for judicial review seeking to uphold the decision of the Tribunal, to prove that disclosure of the notification could not in fact have resulted in the Tribunal having made a different decision. He argues that SZMTA should be re-opened and overruled if that understanding of its proper application is incorrect.
3. By his principal ground of appeal, the appellant also contends that Mortimer J independently erred by erecting and acting on a presumption of fact that the Tribunal did not take information covered by the notification into account in making the decision and casting the onus on him to displace that presumption. He argues that SZMTA should likewise be re-opened and overruled if and to the extent that it supports erection of that presumption.
4. By an additional ground of appeal, the appellant contends that Mortimer J was wrong to confine her consideration of the materiality of the non-disclosure of the notification to the potential for the offence of dishonesty to have borne on the Tribunal's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab to the exclusion of consideration of the potential for the other offences referred to in the Court Outcomes Report covered by the notification to have borne on the Tribunal's final decision. That additional ground of appeal raises no additional question of principle.

1. To understand materiality, it is necessary first to understand jurisdictional error. Though the concept of jurisdictional error is rooted in our constitutional history, only in this century has jurisdictional error come to be articulated as an explanation of the scope of the constitutionally entrenched original jurisdiction of this Court to engage in judicial review of the actions of Commonwealth judicial and executive officers[13], and hence the scope of the statutory jurisdiction conferred in identical terms on other courts created by the Commonwealth Parliament[14], and as an explanation of the scope of the constitutionally entrenched supervisory jurisdiction of State Supreme Courts to engage in judicial review of the actions of State judicial and executive officers[15].
2. Our contemporary understanding of jurisdictional error is the product of acceptance of propositions embraced incrementally in decisions of this Court beginning in the final decade of the last century. In their application to an administrative decision made by an executive officer whose decision-making authority is conferred by statute, those core propositions can be expressed as follows.
3. The constitutionally entrenched jurisdiction of a court to engage in judicial review of the decision, where that jurisdiction is regularly invoked, is no more and no less than to ensure that the decision-maker stays within the limits of the decision-making authority conferred by the statute through declaration and enforcement of the law that sets those limits[16]. To say that the decision is affected by jurisdictional error is to say no more and no less than that the decision-maker exceeded the limits of the decision-making authority conferred by the statute in making the decision. The decision for that reason lacks statutory force. Because the decision lacks statutory force, the decision is invalid without need for any court to have determined that the decision is invalid[17].
4. The statutory limits of the decision-making authority conferred by a statute are determined as an exercise in statutory interpretation informed by evolving common law principles of statutory interpretation[18]. Non-compliance with an express or implied statutory condition of a conferral of statutory decision-making authority can, but need not, result in a decision that exceeds the limits of the decision-making authority conferred by statute. Whether, and if so in what circumstances, non-compliance results in a decision that exceeds the limits of the decision-making authority conferred by the statute is itself a question of statutory interpretation[19].

Proof of materiality of a failure to disclose a notification under s 438(2)(a) of the Act

1. Necessary next is to consider the more specific question of what historical facts a plaintiff in an application for judicial review must prove in order to establish the materiality of a breach of procedural fairness constituted by failure on the part of the Tribunal, in the conduct of a review under Pt 7, to disclose the existence of a notification by the Secretary under s 438(2)(a) that s 438(1)(b) applied to information contained in documents given to the Tribunal by the Secretary pursuant to the procedural obligation imposed on the Secretary by s 418(3).
2. The automatic statutory consequences of a notification under s 438(2)(a), spelt out in SZMTA[68], are that the Tribunal has no power to take information covered by the notification into account in making its decision unless it affirmatively exercises the discretion conferred by s 438(3)(a) and has no power to disclose that information to the applicant for review unless it affirmatively exercises the discretion conferred by s 438(3)(b). Also spelt out in SZMTA[69] is that the Tribunal is obliged to exercise those discretions within the bounds of reasonableness and is obliged to perform its procedural obligations under ss 424AA, 424A and 425 to the maximum extent permitted by the reasonable exercise of the discretion conferred by s 438(3)(b). It is precisely because a notification has those statutory consequences that the implied condition of procedural fairness requiring the Tribunal to give the applicant for review notice of the notification was held in SZMTA to arise[70]. Armed with notice of the notification, the applicant for review becomes equipped to exercise the general entitlement that he or she has under s 423 specifically to present legal and factual argument to the Tribunal for a favourable exercise of the discretions conferred by s 438(3)(a) and (b)[71].
3. The materiality of a failure to disclose a notification under s 438(2)(a) must in that context turn on the potential for information covered by the notification to have borne on the decision which the Tribunal in fact made on the review and on how the Tribunal in fact dealt with that information in making that decision. The potential for information covered by the notification to have had some subconscious impact on the Tribunal in making the decision can for a moment be deferred. As to the potential for information covered by the notification to have impacted on the Tribunal's conscious deliberation if taken into account in making the decision, two categories of case have been shown to have arisen.

"[T]he Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision."

1. That observation of the majority was singled out for criticism by Mortimer J in the judgment under appeal as appearing to require a court on judicial review of a decision of the Tribunal to apply a "presumption" that the Tribunal did not take information covered by a notification into account in making the decision[73]. The observation was not so stated and should not be so interpreted. The observation is no different in its significance or its generality from the routinely cited and routinely illustrated observation in Minister for Immigration and Multicultural Affairs v Yusuf[74] to the effect that the obligation imposed on the Tribunal by s 430(1)(c) to set out its findings on material questions of fact entitles a court to infer that a matter not mentioned by the Tribunal in the statement of the reasons that it in fact gives for its decision was not considered by it to be material.
2. The plaintiff on an application for judicial review of a decision of the Tribunal faces no presumptive impediment to the discharge of his or her burden of proof. Whether or not the plaintiff has discharged the burden of proving on the balance of probabilities that particular information covered by a particular notification was or was not taken into account by the Tribunal in making the decision under review falls to be determined at the end of the day by reference to inferences appropriate to be drawn from the totality of the evidence adduced on the application.
3. Before turning to examine whether the appellant discharged his burden of proving on the balance of probabilities that the Tribunal took potentially adverse information covered by the notification into account in making its final decision in the present case, it is appropriate to return to the topic of the potential for information covered by a notification to have had a subconscious impact on the Tribunal even if the Tribunal did not consciously take that information into account. The potential arises from the availability of an inference, which the appellant seeks to call in aid, that the Tribunal can be expected in the conduct of a review at least to look at information covered by a notification for the purpose of considering exercise of the discretions conferred by s 438(3)(a) and (b).
4. Quite apart from practical difficulties inhering in proof of a subconscious impact, there is a conceptual difficulty in fathoming how the potential for information covered by a notification to have had an impact on the subconscious of a member who constitutes the Tribunal can properly bear on the legal consequence of a failure to discharge the procedural obligation that it breaches through non-disclosure of a notification. As was noted in Minister for Immigration and Border Protection v SZSSJ[75], whilst "compliance with an implied condition of procedural fairness requires the repository of a statutory power to adopt a procedure that is reasonable in the circumstances to afford an opportunity to be heard to a person who has an interest apt to be affected by exercise of that power", "[o]rdinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry". There is an oddity in conceiving of the opportunity to be heard of which the appellant was deprived by non-disclosure of the notification as a lost opportunity to present legal and factual argument to the Tribunal directed to the Tribunal's subconscious. There is a similar oddity in thinking that the Tribunal was required to examine its own subconscious in considering the exercise of the discretions conferred by s 438(3)(a) and (b).

1. Turning to the circumstances of the present case, there would be no difficulty in accepting as a realistic possibility that the final decision of the Tribunal could have been different had the Tribunal in fact taken the offence of dishonesty referred to in the Court Outcomes Report covered by the undisclosed notification into account in assessing the appellant's credit to reject the appellant's claim to fear harm in connection with the dispute over land in Punjab.
2. The determinative question is whether the Tribunal in fact so took the offence into account. The answer is that there is simply no basis in the evidence to find on the balance of probabilities that it did.
3. The fact that the Tribunal breached one procedural obligation by failing to disclose to the appellant the existence of the notification provides no foundation in the circumstances of the case for inferring that it had breached others. Nothing in its statement of reasons for the final decision, or elsewhere in the evidence, contains any hint that the Tribunal failed to heed the automatic statutory consequences of the notification or that the Tribunal made a choice affirmatively to exercise the discretion conferred by s 438(3)(a) to take the offence of dishonesty into account but not the discretion conferred by s 438(3)(b) to draw the information that it had about that offence to the attention of the appellant. The general reference in the statement of reasons for the Tribunal's initial decision to it having considered all the material before it cannot sensibly be read as indicating otherwise.
4. And nothing in the Tribunal's findings in relation to the appellant's claim to fear harm in connection with the dispute over land in Punjab set out in the statement of reasons for its final decision suggests that it took an adverse view of his credit that was incapable of explanation other than by reference to the Tribunal having treated him with distrust because he had been convicted of the offence of dishonesty. On a fair reading of the statement of reasons, the Tribunal did not disbelieve the appellant's account of the historical circumstances of the dispute. The Tribunal's scepticism was directed to the appellant's account of the ongoing consequences of the dispute. What the Tribunal found in substance was that those ongoing consequences did not provide an objective basis for the appellant to entertain a reasonable fear.

1. Left to last is the appellant's argument that Mortimer J was wrong to confine her consideration of materiality to the offence of dishonesty to the exclusion of consideration of the other offences referred to in the Court Outcomes Report.
2. The Minister points out that the argument contradicts the appellant's position before Mortimer J that the offence of dishonesty was the only offence rationally capable of affecting the final decision. That would be a compelling reason to revoke special leave to appeal on the additional ground. The Minister, however, does not seek that revocation. The additional ground of appeal stands. The merits of the appellant's argument on it must therefore be addressed.
3. The short and complete answer to the argument is an extrapolation from what has already been said about the failure of the appellant to prove that the Tribunal in fact took the offence of dishonesty into account. There is simply no basis in the evidence to find on the balance of probabilities that the Tribunal took any part of the information covered by the notification into account in making the decision.
4. The appellant has not sought to argue that the information about the offences was cumulatively so highly prejudicial to the appellant as to lead to the conclusion that a fair-minded lay observer might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the conduct of the review. The nature of the offences, in any event, provides no foundation for such an argument. The offences are not so serious that their accumulation might reasonably be argued to be capable of leading a fair-minded lay observer to think that the Tribunal might not bring an impartial and unprejudiced mind to bear on its determination of the merits of any claim in issue in the review.

1. The appeal must be dismissed with costs.
2. GORDON AND STEWARD JJ. This appeal concerns judicial review of administrative action for jurisdictional error. The Court has recently divided about the content of the applicable principles[80]. Identifying those principles demands attention to the significance of the fact that the Court is concerned with the exercise of public power by the State against an individual and the consequences for the administration of justice.
3. The applicable principles should now be restated. Non‑compliance with an express or implied condition of an exercise of power will result in a decision exceeding the limits of the decision‑making authority conferred by statute unless compliance with the condition could not have made a difference to the decision that was made in the circumstances in which the decision was made.
4. There are evidently two steps. First, it is necessary for an applicant for judicial review to identify an error and establish that the identified error could realistically have resulted in a different decision. This sets a low bar. It would be a mistake to describe this as an evidentiary onus. The task of demonstrating that a decision could realistically have been different had an error not occurred is better understood as directed at the quality or severity of the error and what, as a matter of logic and common sense, might have resulted. It necessarily calls for an assertion as to how a decision might have been different and an explanation as to why that is so. But because the bar is low, a court should hesitate to reject a sensible and reasonable postulation about what the result could have been. Naturally, speculation and conjecture will not be sufficient. More is needed. But it is not necessarily a task which is determined by leading evidence and by demonstrating what is possible on the balance of probabilities. That is because the subject matter of the inquiry is hypothetical; it is not a matter of proving what could have happened. Rather, the task is one of persuasion, based upon the nature of the breach and the claims that have been made, as well as logic and common sense. Put in different terms, precisely what must be shown will depend upon the nature of the alleged error. In some cases, however, an error will be jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker.

1. We are concerned with the application of public power to individuals. That always requires justification. The justification here is statute. It must now be accepted that breach of a condition regulating the exercise of a statutory power does not always mean that the exercise of power is invalid and of no effect[83].
2. Fundamental principle requires the conclusion that, subject to contrary legislative intention, where an applicant shows a decision‑maker to have failed to comply with a statutory condition, and where that failure could realistically have affected the outcome, it is for the respondent (the Executive) to establish that compliance with the condition could not have made a difference to the outcome. It is not for the individual affected by the wrongful exercise of power to establish that it could have made a difference to the outcome.
3. The Constitution "is framed upon the assumption of the rule of law"[84]. The precise meaning of the rule of law may be, and often is, contested. But what is in issue in this appeal takes the content of the rule of law at its narrowest. That one "cardinal principle" of the rule of law, the irreducible minimum about which there is not and cannot be any debate, is "that Government should be under law, that the law should apply to and be observed by Government and its agencies, those given power in the community, just as it applies to the ordinary citizen"[85]. As Sir John Laws has written, the "agreed beginning" for debates about the rule of law is "that State power must be exercised in accordance with promulgated, non‑retrospective law made according to established procedures"[86].
4. Section 75(v) of the Constitution - which confers jurisdiction on the High Court in all matters in which a writ of mandamus, or prohibition, or an injunction, is sought against an officer of the Commonwealth - "secures [that] basic element of the rule of law"[87]. The individual who is subject to the exercise of public power is "provided with a mechanism to challenge the lawfulness of the exercise of official power"[88].
5. In Australia, the separation of the judicial power of the Commonwealth from executive and legislative powers by Ch III of the Constitution recognises the "deeply rooted notions of the relationship of the individual to the state going to the character of the national polity created and sustained by the Constitution"[89]. Chapter III of the Constitution "reflects and protects"[90] that relationship, recognising that Ch III is the "only general guarantee of due process" in a controversy between the Executive and the individual[91]. Where, as here, the law is concerned with the exercise of executive power, "judicial review is a principal engine of the rule of law"[92].

"Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly". (emphasis added)

1. Judicial review ensures that the Executive does not exceed its powers[94]. It ensures that decision-makers "obey the law and neither exceed nor neglect any jurisdiction which the law confers on them"[95]. In particular, it ensures that decision-makers stay within the limits (express or implied) of the decision‑making power conferred by statute. Judicial review recognises the importance of the Executive acting within lawful authority: that public power is not to be exercised against an individual in a way that is contrary to law. It recognises that the executive power of the Commonwealth is "exercised at a functional level by Ministers and by other officers of the Executive Government" and that in the exercise of those powers, they can and do err[96].
2. In addition, and of no less significance, it recognises that the Executive cannot itself authorise a breach of the law. Not only does the rule of law require that the Executive act within legal authority, but as this Court has repeatedly stated[97], in various ways and in various contexts, "[i]t is fundamental to our legal system that the executive has no power to authorize a breach of the law"[98].
3. In cases of the kind under consideration in this appeal, public power has been exercised in a way that disadvantages an applicant - an individual. Once the individual shows a departure from the lawful exercise of power and that the departure might realistically have affected the outcome of a decision, the individual cannot be expected or required to show that they would have obtained a favourable exercise of statutory power but for the departure. It is for the decision‑maker to show that the individual would not have done so.
4. The relationship between members of the public and the Executive, and the idea that underpins it, was described by Boughey and Weeks as "government accountability": "one of the key 'values' or 'ideals' that administrative law is designed to uphold"[99]. It is said to encapsulate[100]:

"the basic idea that the executive branch and its delegates must be answerable, and as a general principle justify their actions, to the public, the Parliament, the courts or any administrative agency (ombudsmen, tribunals, anti‑corruption agencies etc)."

1. Judicial review of administrative action derives its legitimacy and constitutional importance from the rule of law. Rule of law values provide principled support for the view that if an individual establishes error in an administrative decision, it should be for the Executive to establish that, even without the error, the same outcome would have been reached. Once it is accepted that the rule of law requires that the Executive must act within legal authority and that the purpose of judicial review is to provide individuals with a mechanism to challenge the lawfulness of the exercise of official power, it is conceptually difficult to understand why the individual would need to show anything more than that public power was exercised in a manner that exceeded a condition of the exercise of that power and that it is realistically possible that the error could have affected the result. To require an individual to show that executive power - public power - could have been exercised differently if preconditions on the exercise of that power had been met is to fail to understand the constitutional relationships between Parliament, the Executive and courts and the role of judicial power in seeking to ensure that executive power which exceeds the authority conferred on the Executive is controlled. The idea that breaches of statutory conditions by decision‑makers should not lightly be seen to have no legal consequences for the decision may sometimes be described as "legality", but it is an idea more fundamental than the principle of statutory construction identified in Potter v Minahan[101]. As Professor Daly has rightly remarked, "[w]hereas one might be content to accept that the applicant bears the burden of proof generally in judicial review cases, one might nonetheless consider that putting the onus of proving materiality on the applicant does not adequately ensure that administrative decision-makers will comply with the law"[102].
2. This Court has recognised that not every error of law will invalidate an exercise of statutory executive power[103]. But there may be cases where an error is jurisdictional regardless of the effect the error may have had on the conclusion of the decision-maker and despite not depriving a party of the realistic possibility of a different result[104]. The cases may include[105] where a decision‑maker is required to make a decision by reference to a single specified criterion and, in error, the decision‑maker addresses a different and wrong criterion and where lack of respect for the dignity of the individual results in a denial of procedural fairness. That is not an exhaustive list.

1. Although we consider that the rule to be applied should be restated, it is essential, as was noted in SZMTA, to take account of past decisions of this Court − including, in particular, Stead v State Government Insurance Commission[111], Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[112] and Minister for Immigration and Border Protection v WZARH[113]. Those cases, and the many decisions that have followed them[114], recognise that although the exercise of public power against the individual arises in different contexts, the balance of the relationship between the individual and the State is best protected by the State having to show why a departure from the legal constraints on the exercise of public power was immaterial to the outcome that was reached. The decisions recognise that, although the onus of proof in judicial review may fall generally upon an applicant, courts "expect public authority defendants to explain themselves"[115]. As Edelman J demonstrates[116], Stead[117] and Balenzuela v De Gail[118] do not support the rule stated by the plurality in this case.
2. In Stead[119], in an appeal by way of rehearing, having noted the difficulty for a court of appeal asked to conclude that compliance with the requirements of natural justice could have made no difference to the outcome in the particular case, the Court said that "[a]ll that the appellant needed to show was that the denial of natural justice deprived [the appellant] of the possibility of a successful outcome" and it was for the respondent to demonstrate "that a properly conducted trial could not possibly have produced a different result" (emphasis added).
3. The decisions in VEAL and WZARH are not inconsistent with the restated rule. In VEAL, this Court found, on the particular facts, that a denial of procedural fairness occasioned by a failure to disclose adverse information constituted a jurisdictional error which warranted setting aside the decision below, notwithstanding that the reasons of the Tribunal had contained an affirmative statement that it had given the adverse information in question "no weight"[120]. In WZARH, where a procedure adopted by an administrator was shown to have failed to afford a fair opportunity to be heard, not only was the rule stated in similar terms but the practical significance of the rule was recognised as follows[121]:

"[A] denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given". (emphasis added)

1. The restated rule is consistent with approaches taken in other areas of public law, including:

(1) where there is unreasonable delay in the making of an administrative decision, it is for the respondent to establish a satisfactory justification for the delay[122];

(2) in an application for habeas corpus, provided that the detainee has established probable cause or a case fit to be considered, the person directing detention must prove the lawfulness of the detention[123]; and

(3) where material is unlawfully seized by a public official in purported execution of a warrant, the onus is on the respondent to establish a basis for a court to refuse discretionary remedies[124].

1. The proposition also sits comfortably with the operation of the "proviso" to the common form criminal appeal provisions[125]. That is, in short, once an appellant has made out an error or irregularity under the second or third appeal criterion - namely, a wrong decision on a question of law or a miscarriage of justice - the onus shifts to the Crown to satisfy the court that there has been no substantial miscarriage of justice[126].

1. Other areas of law are replete with examples of the onus being placed on, or shifted to, one party once a prima facie case has been made out by another party. This can be seen in cases concerning, among others:

(1) negligence, where a defendant who seeks to argue that a plaintiff's injury was caused by a condition which pre-existed a negligent act bears the onus of proof[127];

(2) unlawful imprisonment, where, if imprisonment is found to have occurred, the defendant has to justify the lawfulness of the imprisonment[128];

(3) fraudulent misrepresentation, where, if a false statement is made with the intention of inducing a person to enter a contract and that person enters that contract, the defendant bears the onus of disproving inducement[129];

(4) bailment, where, once a bailor establishes that goods bailed pursuant to a contract of bailment were lost or damaged, a bailee must disprove negligence[130];

(5) the admissibility of improperly or illegally obtained evidence, where, if a party seeking to exclude evidence establishes that the evidence was improperly or illegally obtained, the party seeking its admission must persuade the court that the desirability of admission outweighs any undesirability[131]; and

(6) nuisance, where the onus lies on a defendant relying on the defence of statutory authority to establish that the nuisance was authorised by statute and was an inevitable consequence of the performance of a statutory activity or duty or the exercise of a statutory power[132].

1. None of this is exhaustive. It reflects what was said in Djordjevitch[133], as explained above: namely, that the ordinary rule is for the burden of proof to be allocated to the party seeking to rely on an "additional or special matter" in support of a ground of defeasance or exclusion to deny a right to another party in a particular case.

1. Requiring a decision‑maker to establish that compliance with a statutory condition of an exercise of power could not have made a difference to the decision that was made in the circumstances in which the decision was made also is practical and works practicably. The reverse is not and does not. There are three independent, but related, practical considerations.
2. First, predicting how the outcome of a decision-making process might have differed if an error had not occurred is not an easy task even for those legally trained. That difficulty was recognised in Stead when this Court said that "[i]t is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial"[134]. In SZQGA v Minister for Immigration and Citizenship[135], Barker J explained that predicting how the outcome of a decision-making process might have differed if an error had not occurred is fraught. His Honour put the point in these terms[136]:

"It will often be extremely difficult to say what decision might have been made by an administrative decision‑maker if there had been no denial of procedural fairness in a given case - and it is not for the review court to speculate. To try to reconstruct a decision‑making process or to rework the apparent basis upon which a decision has been made, in order to state with any confidence what the result might have been or would have been but for denial of procedural fairness, is likely to be a speculative and unproductive task and certainly one likely to lead to injustice, because the judicial reviewer is not equipped and is not charged with responsibility to make the sort of administrative decision that the primary decision-maker has been set up to determine."

1. The observations apply with greater force if the task must be undertaken by the applicant (and especially in respect of unrepresented applicants). As was explained in ABT17 v Minister for Immigration and Border Protection[137]:

"To require an individual to show that executive power - public power - would have been exercised differently if preconditions on the exercise of that power had been met is to fail to understand [the constitutional relationships between Parliament, the Executive and courts] and the role of judicial power. It places the onus on an individual to show why public power should be re‑exercised, rather than protecting that individual from exercises of public power which are contrary to the law. And, it must be observed, at least in some cases it places the onus on an individual to show why public power should be re-exercised, without the necessary facts, or the ability to obtain the necessary facts." (emphasis added)

1. That leads to the second, related, consideration. The decision‑maker, the person whose decision is in issue, is "free to assist"[138] in discharging the onus of establishing why the absence of the identified error, their error, would not have led to a different result. The respondent in a judicial review application enjoys distinct advantages as the decision‑maker responsible for the decision‑making process which has led to the impugned decision. The respondent will have access to the departmental files and records relevant to the impugned decision. Indeed, in a case of the kind here in issue, where a tribunal has committed an error by failing to disclose the existence of a notification under s 438 of the Migration Act 1958 (Cth) to an applicant, the Minister is usually the only party to the dispute capable of adducing evidence that the error has occurred[139]. This observation should not be taken to suggest that a tribunal on judicial review of one of its decisions should become a "protagonist" in the judicial review proceeding[140]. Rather, it recognises that, in law and effect, where an administrative tribunal has made a decision in substitution of the decision of the primary administrative decision‑maker, that decision "becomes the decision of the Executive Government"[141]. The tribunal stands in the shoes of the decision-maker whose decision is under review[142].
2. The advantages enjoyed by public authorities and officers have been explained in other contexts when addressing the fact that the onus of proof is on the decision-maker. In R v Southwark London Borough Council; Ex parte Ryder[143], Dyson J emphasised that the decision-maker whose decision was impugned in that case said that she took a point into account that "[p]rima facie ... was irrelevant", and "[i]n the absence of details as to how and why [the decision-maker] took it into account", his Lordship was "driven to conclude that [the decision-maker] may well have relied upon it in a material sense". Although Dyson J did not expressly refer to matters of practicality in his Lordship's decision, it is self‑evident that if details about how and why a decision-maker took a particular matter into account were not set out in the reasons for a decision, then they would be solely within the knowledge of the decision-maker or, perhaps, in records held by the government.
3. The same basic proposition explains why the onus is on the decision‑maker to demonstrate why a delay in making a decision is not an unreasonable delay. In decisions on unreasonable delay as a ground of judicial review, considerable weight is attached to the evidence offered by the public authority justifying the delay. In such cases, ordinarily the only evidence which could be adduced by an applicant relevant to materiality would be the fact of the delay or length of time since lodging the relevant application. Determination of the matter would then depend on an inference or evaluative conclusion being drawn by a court on application for judicial review that the length of time was unreasonable. In contrast, as is evident from the Privy Council's treatment of this issue in Oliveira v The Attorney General (Antigua and Barbuda)[144], a public authority is in a position to adduce a range of relevant evidence, including documentary evidence that might (for instance) identify a backlog or unavoidable procedural delays. In short, it is the decision‑maker (not the individual in respect of whom the decision is made) who is capable of explaining the reason for a lengthy period of inactivity[145].

"Care must be taken lest in exercising an authority to decide whether an error of law occurring at the trial is likely to have influenced the result, what is really done is to examine the evidence as if the court were forming a conclusion of fact for itself. The basal distinction between the court's duty and the function of the jury cannot be confused in this way."

1. All the judges of this Court in SZMTA were alive to the same possibility. Bell, Gageler and Keane JJ said that in the case of an invalid notification purportedly made under s 438 of the Migration Act, "where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal's decision could have been different if it had taken the document or information into account"[150]. But their Honours immediately cautioned that "[t]he court must be careful not to intrude into the fact-finding function of the Tribunal"[151]. Similarly, the minority said that: "to shift the onus of proof would fundamentally change the nature of judicial review. Instead of a court concluding that an act or omission constitutes an error going to jurisdiction ... [judicial review] would become a form of merits review where jurisdictional error is found only if the breach is material to the applicant for review because it has denied that applicant the possibility of a successful outcome"[152]. The risk that a review court will erroneously consider for itself questions of fact determined by the primary decision-maker highlights the potential practical injustice that could flow from requiring applicants to do anything more than establish a relevant error (that is, one which could realistically have resulted in a different decision).
2. The practical difficulties are real: for those legally trained and those not legally trained. But one side or the other must bear the onus and the issue is which. In some cases, the respondent will enjoy practical advantages which mean that the respondent is best placed to answer the question of what would have occurred but for the error. In many other cases, the respondent may not enjoy any such advantage. We accept that there may be cases where all either party may have is the decision-maker's reasons and the material before the decision-maker. But there needs to be a stated rule which is principled and practical. The question that arises is: why should the task of establishing that an error would have affected the outcome fall to the applicant once they have established that a breach of the law has occurred and that the error could realistically have denied them the possibility of a successful outcome? The answer is, it should not. Once error is identified by an applicant, the onus of proving that the error is immaterial to the decision that was reached is on those who seek to affirm the decision's validity - namely, the Executive.

1. The appellant is an Indian citizen who validly applied for a protection visa on 22 January 2014[153]. A delegate of the first respondent, the Minister for Immigration and Border Protection, refused the application on 4 June 2014.
2. The appellant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal ("the Tribunal"), for review of that decision. The appellant made two central claims in support of his protection visa application. The first arose out of a land dispute with relatives; the second was that he became stateless when his family disowned him for changing his religion, cutting his hair and adopting an Australian lifestyle.
3. On 5 June 2014, a delegate of the Minister issued a notification to the Tribunal under s 438 of the Migration Act in respect of the appellant's protection visa application. The information to which the notification applied was contained in the following documents:

(1) an "Immigration Status Service Report" dated 31 March 2012, which stated, among other things, that an officer of Victoria Police had advised the then Department of Immigration and Citizenship ("the Department") that the appellant "has over 28 pages of offences and is currently on a suspen[d]ed sentence until Sept 2012";

(2) a screenshot of a "Client Detail" page for the appellant, which set out information such as the appellant's name, date of birth and address;

(3) a facsimile cover sheet for a ten-page facsimile message from Victoria Police to the Department dated 31 March 2012; and

(4) the remaining nine pages of the facsimile message, which was a Victoria Police court outcomes report in relation to the appellant, which showed that he had been convicted of a number of driving‑related offences on 30 September 2011.

1. The court outcomes report revealed that on 30 September 2011 the appellant received a three‑month suspended term of imprisonment for one count of drink driving and one count of driving while disqualified. On the same day, he received non‑custodial punishments for the following additional convictions: seven counts of driving while disqualified; two counts of drink driving; three counts of using an unregistered vehicle; two counts of using a vehicle not in a safe and roadworthy condition; one count of "state false name"; one count of removing a defective vehicle label; and one count of failing to wear a seatbelt in a moving vehicle.
2. The appellant was not told that the s 438 notification had been issued or that the court outcomes report was provided to the Tribunal. On 4 November 2014, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.
3. In relation to the land dispute claim, although the Tribunal had "some concerns about the [appellant's] credibility", it accepted there had been a dispute between the appellant's father and uncle over land in Punjab and that the appellant had been taken to a house in Amritsar by his cousin, drugged and held there until his father paid the amount of A$3,500 in exchange for the appellant's release.
4. However, the Tribunal did not accept the appellant's claim that he had been subject to continuing threats from his relatives in relation to the land dispute, saying:

"I do not accept that the [appellant] has been subject to continuing threats in relation to the land dispute because he is the eldest son of his father. The [appellant] was able to reside in Delhi, India for 2-3 years after the Amritsar incident without facing any further harm from his uncles and his relatives. The Amritsar incident was 12-13 years ago and resolved when the father made payment to his uncle. Furthermore, on the [appellant's] oral evidence at hearing, in recent times his father has been pressured but not actually harmed or threatened by the relatives despite his father refusing to sign over the land through an affidavit. I do not accept that if the relatives wanted to harm the [appellant] over the land that they would not be threatening or harming his father in circumstances where the dispute originates in relation to the father and the father has the ability to sign a document giving them the land. I do not accept as credible or plausible that simply because his father was in Delhi and not Amritsar that this would completely deter the relatives from undertaking threatening or violent action against his father to obtain legal ownership of the land. The [appellant] stated at the hearing that his mother's brother was a policeman, which I accept. However, I do not accept as credible or plausible that the relatives would not threaten or harm his father (but would threaten or harm the [appellant]) because his mother's brother was a policeman. In all the circumstances, I do not accept that the relatives have a continuing adverse interest in the [appellant]." (emphasis added)

1. In relation to the claim that he had been disowned by his family, the Tribunal accepted that the appellant's family had disowned him but did not consider that being "disowned" constituted significant harm for an adult, 29‑year‑old man. The Tribunal also noted that the appellant did not claim to have been threatened for adopting an Australian lifestyle, and that the Tribunal had not identified any "recent reports of Sikhs in India being harmed because they have cut their hair, adopted Western lifestyles or drank alcohol". The Tribunal made no reference in its reasons to any of the matters contained in the information and documents the subject of the s 438 notification.
2. The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court of Australia. On 17 May 2016, the Federal Circuit Court (Judge Hartnett) dismissed the appellant's application. The appellant was unrepresented and his application essentially sought to challenge the merits of the Tribunal's decision, rather than asserting any jurisdictional error. The primary judge considered whether any jurisdictional error arose on the face of the Tribunal's reasons, but dismissed the application.
3. The appellant appealed to the Federal Court of Australia. While the matter was pending in the Federal Court, two significant developments occurred: first, the Minister filed an affidavit which disclosed for the first time the existence of the s 438 notification; and second, the matter was held in abeyance pending the decision of this Court in SZMTA.
4. On 4 December 2019, the Federal Court (Mortimer J) dismissed the appellant's appeal. Mortimer J observed that the Minister had conceded, in light of the decision in SZMTA, that the failure by the Tribunal to disclose the existence of the notification given by the Secretary of the Department ("the Secretary") under s 438(2) to the appellant "constituted a denial of procedural fairness"[154]. However, her Honour concluded that the appellant had failed to show, as her Honour considered was required by SZMTA, that there was a realistic possibility that he could have succeeded in the Tribunal if he had been told of the s 438 notification and the documents that had been sent to the Tribunal[155]. This conclusion was said to follow from her Honour's finding that "the Tribunal's reasoning was not in fact affected by the potentially adverse information in the first place"[156].

1. There were two issues on appeal in this Court. The first was the issue of principle discussed above: namely, who does, and who ought to, bear the onus of establishing materiality or immateriality in an application for judicial review of administrative action[157]. The second issue on appeal concerned how the applicable principles were to be applied where, as here, an applicant for a protection visa is denied procedural fairness by reason of the Tribunal's failure to disclose that a notification has been issued under s 438 of the Migration Act.

1. Applying the restated rule, the root of the analysis is one of statutory construction[158]. In the present appeal, the applicable statutory framework is a review under Pt 7 of the Migration Act of the delegate's refusal to grant the appellant a protection visa in circumstances where the Tribunal has received a notification under s 438 of the Act in respect of information that is potentially adverse to the appellant and where the Tribunal has failed to disclose to the appellant the existence of the notification.
2. As has been observed, the Minister accepted that the failure by the Tribunal to disclose the existence of the Secretary's notification under s 438(2) to the appellant constituted a denial of procedural fairness.
3. The question which then arises is whether that breach of procedural fairness constitutes jurisdictional error. In this case, the Tribunal's failure to provide procedural fairness could realistically have deprived the appellant of the possibility of a successful outcome. To establish as much, the appellant was not required to demonstrate that the Tribunal in fact exercised its discretion under s 438(3)(a). It is enough that the Tribunal could realistically have exercised the s 438(3)(a) discretion and that the s 438 information could realistically have contributed to the Tribunal's ultimate decision. The question then is whether the Minister demonstrated that affording procedural fairness to the appellant, by disclosing the fact that the s 438 notification had been made to the Tribunal, would not have resulted in a different outcome.
4. The appellant rightly accepted that if the Minister established that the s 438 information was not taken into account by the Tribunal, then the Minister would have established that the error - the breach of procedural fairness - was immaterial and did not constitute jurisdictional error. The issue is to be decided by the ordinary processes of fact finding, which start with the relevant statutory framework - here, Pt 7 of the Migration Act and the proper construction of s 438 - and, against that legislative framework, then look to the record and the evidence adduced on the application, and inferences to be drawn from that material. As the Minister accepted, the issue is not to be decided by applying an irrebuttable presumption about what the Tribunal did or did not do. Nor is it to be decided by applying some rebuttable presumption about what the Tribunal did or did not do. In this case, the Minister demonstrated that compliance with the statutory requirements would not have led to a different outcome. It is necessary to explain how and why and to begin by considering the relevant statutory framework.

1. I have had the considerable benefit of reading both the joint reasons of Kiefel CJ, Gageler, Keane and Gleeson JJ and the joint reasons of Gordon and Steward JJ. The central issue of distinction between those reasons, and the principal point of law in issue on this appeal, concerns the party who bears the onus of proof in relation to the materiality of non‑compliance with a statutory condition. Kiefel CJ, Gageler, Keane and Gleeson JJ conclude that the onus of proof is borne by the party seeking to prove that the non-compliance was material and therefore was jurisdictional. Gordon and Steward JJ conclude that the onus of proof is borne by the party asserting immateriality and denying that the non‑compliance was jurisdictional.
2. For reasons of history, authority, principle, and coherence, I consider that the better approach to the onus of proof in this case, concerning a denial of procedural fairness in a review under Pt 7 of the Migration Act 1958 (Cth), is that of Gordon and Steward JJ. Given the strength with which the opposing views have been expressed, it is necessary to explain why the same reasons of history, authority, principle, and coherence that require the usual implication of a requirement of materiality before a court will conclude that non-compliance with a statutory condition will lead to invalidity also usually require that the onus of proof is upon the party asserting immateriality.
3. Ultimately, however, my different conclusion from that of Kiefel CJ, Gageler, Keane and Gleeson JJ on the onus of proof might have little practical effect for three reasons. First, any conclusion on onus of proof is not capable of universal generalisation. Just as the source of a statutory condition upon a duty, power, or function is derived expressly or impliedly from the statute, so too is the requirement of materiality and the onus of proof for materiality derived expressly or impliedly from the statute. As the courts of the United States have long recognised, the location of the onus will depend upon the terms and context of the statute. In criminal cases in the United States, like Australia, it has been held that the onus lies upon the government to prove immateriality because the result will "deprive an individual of his liberty"[181]. In civil cases in the United States, unlike Australia, the general approach is that the person "who seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted"[182]. But there are no "hard‑and‑fast standards governing the allocation of the burden of proof in every situation"[183]. The different general rule on onus of proof in civil and administrative cases in the United States might not apply depending "on the statutory setting or specific sort of mistake made"[184].

The distinction between a threshold for a ground of review and "materiality"

1. As Gordon and Steward JJ explain[189], there are evidently two steps that must be taken before a conclusion of jurisdictional error is reached. This section of these reasons is concerned with the first step. Before any issue of materiality can arise an applicant must establish that there has been non‑compliance with a statutory condition or, put more loosely, that there has been an error capable of being a jurisdictional error. There will often be a threshold requirement of injustice before it is concluded that there has been non‑compliance with a statutory condition. For instance, a statutory condition that requires a decision‑maker to have regard to mandatory relevant considerations usually involves a threshold which material must cross before it reaches the standard of relevance. To take one definition of relevant material, it must be material that "if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding"[190]. Once relevance is established, a decision‑maker's failure to consider such material will meet the threshold of injustice so as to be capable of being a jurisdictional error.
2. The statutory condition of procedural fairness is another example of a condition that contains a threshold requirement before there will be failure to comply. Any procedural irregularity must reach a threshold of sufficient injustice before procedural unfairness will be found to exist. For instance, a person "does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance"[191]. The threshold of injustice that is necessary for an obligation of procedural fairness can be understood as a need to establish that an irregularity is capable of causing "practical injustice"[192]. Without the possibility of practical injustice, a procedural irregularity will not involve procedural unfairness.
3. An applicant bears the onus of proving procedural unfairness and therefore must bear the onus of proving that an irregularity constitutes procedural unfairness. It will usually be sufficient to point to the seriousness of the irregularity to establish that it is capable of producing practical injustice. This is, emphatically, not an inquiry into whether the actual result might have been different. It is an inquiry into whether the irregularity reached the threshold of "error". The same principle applies to irregularities in civil trials: the capacity to cause practical injustice is established once it is concluded that evidence that was admitted was inadmissible, and the party against whom it was tendered has "a prima-facie right to a new trial", with a separate, and different, question being whether that right can be "displaced" if "the evidence erroneously admitted cannot reasonably be supposed to have affected the result"[193].

The implication of materiality as a requirement for invalidity

Implication of statutory conditions upon power generally

1. More than a century ago, Isaacs J explained that an implication "is included in what is expressed" and, on a proper interpretation, is to be understood to have been "meant by what is actually said, though not so stated in express terms"[203]. In this sense, like the "same rules which common sense teaches every one to use", statutory meaning also includes many assumptions because "[h]owever minutely we may define, somewhere we needs must trust at last to common sense and good faith"[204]. This use of statutory assumptions does not differ from our ordinary use of language. As Professor Pinker has observed[205], "language itself could not function if it did not sit atop a vast infrastructure of tacit knowledge about the world and about the intentions of other people". For instance, "[w]hen the shampoo bottle says 'Lather, rinse, repeat', we don't spend the rest of our lives in the shower; we infer that it means 'repeat once'".
2. Coke was referring to such assumptions when he wrote that the "surest construction of a Statute is by the rule and reason of the Common Law"[206], that "it is a good exposition of a Statute, when the reason of the Common Law is pursued"[207] and that "in construction of Statutes, the reason of the Common Law give[s] great light, and the Judges, as much as may be, follow the rule thereof"[208].
3. The "reason" of the common law as a statutory assumption was the foundation for the celebrated decision of Byles J in Cooper v Wandsworth Board of Works[209], when he said of the rules of procedural fairness that "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature". As decisions in this Court have explained, that passage described how the common law, as part of the "matrix of legislation", is an assumption upon which legislative intention is based[210]. Hence, conditions upon statutory powers have long been recognised as a matter of statutory implication. Examples include conditions that require a decision‑maker: to afford procedural fairness[211]; to take into account relevant considerations[212]; and not to exercise powers, including making decisions, unreasonably[213].
4. The understanding of statutory conditions upon power as underlying assumptions was more than a century old when it was expressed in 1961 by its most famous proponent, Dr Wade, in terms which described statutory interpretation as being at the "heart" of determining conditions upon statutory power[214]. In Walton v Gardiner[215], Brennan J acknowledged that he had adopted or applied Wade's approach in a line of decisions from 1982 onwards[216]. Wade's view was also adopted by Hayne, Kiefel and Bell JJ in 2013 in Minister for Immigration and Citizenship v Li[217].

Implication that non-compliance with a statutory condition will invalidate an administrative decision

1. An exercise of public power has long been held to be invalid if that exercise is beyond a statutory condition expressly or impliedly conferred upon the repository. As de Smith observed, the prerogative writ of certiorari had been used since the fourteenth century to keep inferior courts or tribunals "within their spheres of jurisdiction"[218]. In 1886, in the United States, Hawes cited many authorities for the proposition that if a court "acts without authority its judgments and orders are regarded as nullities"[219].
2. Just as the conditions upon statutory power are to be discerned as a matter of legislative intention, so too is legislative intention the basis for discerning whether non‑compliance with a condition upon statutory power will deprive a decision‑maker of authority. These legal principles concerning the setting aside of decisions for non‑compliance with a statutory condition did not change at Federation in 1901 by the inclusion of s 75(v) in the Constitution, a provision that conferred authority on this Court to act according to "the known principles of law"[220]. These known principles of law continued to be refined.
3. For centuries, judges spoke of discerning the validity of action purportedly authorised by statute by considering "the meaning and intention of the Legislature" and focusing upon a distinction between circumstances that were "of the essence of a thing required to be done" and those that were "merely directory"[221]. In the former category, non-compliance would lead to invalidity. In the latter category, non-compliance would lead to invalidity only if there had not been "substantial compliance with the requirement"[222].
4. The language of "mandatory" and "directory" provisions, at least as an exclusive test, was disfavoured by the Court of Appeal of the Supreme Court of New South Wales in Tasker v Fullwood[223]. But it was nevertheless emphasised that the question was one of statutory interpretation: "to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done"[224]. When the approach in Tasker v Fullwood was adopted by this Court[225], McHugh, Gummow, Kirby and Hayne JJ reiterated the focus upon legislative intention, saying that the test should be "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid"[226].

Materiality as a condition for a new civil or criminal trial

1. There is a long history to the requirement of materiality of a legal error before a new civil or criminal trial will be ordered[231]. The original rule, which existed in both civil and criminal cases in the Court of King's Bench[232], as well as at Common Pleas[233], and in Chancery when issues had been decided by a common law jury[234], was that an erroneous ruling in relation to evidence would lead to a new trial unless no injustice resulted from the error. One instance where no injustice might arise was described by the Lord Chief Justice in R v Teal[235] as where the error "could have made no difference, at least it ought not to have made any difference in the verdict".
2. That original rule was displaced for a period of time by the "Exchequer rule", which was ushered in by the decision of the Court of Exchequer in Crease v Barrett[236]. The Exchequer rule was that the admission of inadmissible evidence meant that the "losing party has a right to a new trial"[237]. But the Exchequer rule had little to commend it. Professor Wigmore described it as the "Exchequer heresy" and lauded the judges who did not comply with it as "refusing to bow the knee to the Baal-worship of the rules of Evidence"[238].
3. The Exchequer rule was abolished in civil matters by a judicature rule enacted by the Supreme Court of Judicature Act 1873[239]: r 48 provided that a new trial shall not be granted for misdirection or improper admission of evidence unless the court considered that a "substantial wrong or miscarriage" had occurred. In a decision later approved in this Court[240], Cussen J said in Holford v The Melbourne Tramway and Omnibus Co Ltd[241] that a substantial wrong or miscarriage in relation to jury misdirection existed where "the result of the case is such as to show that [the jury] may have been influenced in their verdict by the misdirection".
4. The Exchequer rule was abolished in criminal matters by the proviso to s 4(1) of the Criminal Appeal Act 1907[242], which permitted the newly created Court of Criminal Appeal to dismiss an appeal despite an error of law or miscarriage of justice if "they consider that no substantial miscarriage of justice has actually occurred". In New South Wales in 1912, the Criminal Appeal Act 1912 (NSW) permitted a new trial to be ordered if the Court of Criminal Appeal considered that a miscarriage of justice had occurred[243] but nevertheless also contained a proviso that permitted the appeal to be dismissed if the court considered that "no substantial miscarriage of justice has actually occurred"[244].

Materiality as a condition for a new administrative hearing

1. Just as long‑standing assumptions form the basis for an implication of statutory conditions upon power, so too do the long‑standing assumptions about materiality form the basis for an implication that non‑compliance with those conditions will not lead to invalidity unless the non-compliance is material. In Nobarani v Mariconte[251], this Court recognised the equivalence of (i) the requirement of a "substantial wrong or miscarriage" before a new trial will be ordered and (ii) the materiality requirement in judicial review before non‑compliance with a statutory condition will lead to invalidity of the decision. In both cases, the question is whether a new trial or hearing should not be granted despite the miscarriage or error of law.
2. In the same manner as the rules that have developed in relation to new civil or criminal trials, and subject to any express statutory provision to the contrary, some errors or failures to comply with statutory conditions will always involve a material breach irrespective of whether the result might have been inevitable. One type of statutory condition that will always involve material non‑compliance is a duty to make the ultimate decision within the bounds of legal reasonableness[252]. A decision that is legally unreasonable will, by definition, involve an error that is not trivial or harmless.
3. A different type of statutory condition that will always involve material non-compliance is where the non-compliance is fundamental to the hearing process. For instance, just as it was said of new criminal trials in Weiss, it could be no answer to an extreme denial of procedural fairness in an administrative hearing to say that if the applicant had been given the opportunity to put their case then the case would inevitably have failed[253]. Nor could it be an answer to a hearing tainted by actual or apprehended bias to say that the case would inevitably have failed before an impartial decision‑maker. In the language of the United States decisions, bias is a ground that is so fundamental that it will "defy harmless‑error review"[254].

The onus where a new civil or criminal trial is sought

1. As a matter of principle, the role of legislative intention should not be limited to discerning the existence of statutory conditions and the requirement for non-compliance with statutory conditions to be material. It should also extend to discerning the party who bears the onus of proving materiality or immateriality. The consequence of the onus of proof being a matter of expression or implication of legislative intention is that the onus of proof of materiality or immateriality must depend on the statutory context. As explained in the introduction to these reasons, this is the position that has been reached in the United States.
2. Many statutes will contain little or no indication to guide a court as to which party bears the onus of proof. The legislative intention in these circumstances can only be based upon assumptions derived from the historical matrix of common law and statute. Like the history of the materiality requirement which established materiality as a usual assumption, the Australian history of the onus of proof has established that the onus is generally borne by the party opposing a new trial or a new hearing. That is, the onus is generally to prove immateriality, not to prove materiality.
3. The common law need not have taken this path. Indeed, the judicature rule, in its literal terms which provided that "[a] new trial shall not be granted ... unless"[255], could have comfortably been understood as placing the onus upon the party seeking a new trial. But the onus of proof was not generally understood in this way. An early case involving the recognition that the onus is to prove immateriality and not for an applicant to prove materiality, described by Wigmore as a "model example"[256], was the decision of Porter J in People v Fernandez[257], where he said:

"there is no distinction between civil and criminal cases. The reception of illegal evidence is presumptively injurious to the party objecting to its admission; but where the presumption is repelled, and it clearly appears, on examination of the whole record, beyond the possibility of rational doubt, that the result would have been the same if the objectionable proof had been rejected, the error furnishes no ground for reversal."

1. In Australia it is established beyond doubt in relation to the common form proviso in criminal law that the onus of proof lies upon the State to establish that no substantial miscarriage of justice has occurred[258]. As McHugh J said in TKWJ v The Queen[259]:

"Cases on the proviso operate on the hypothesis that there has been a legal error that prima facie requires the conviction to be set aside. The issue then becomes whether the Crown has shown that no substantial miscarriage of justice occurred because the error could not have affected the result of the trial."

1. For a period of time, however, the opposite view prevailed in relation to civil trials. In Holford[260], Cussen J said that it was sufficient for the party seeking a new trial to demonstrate that the jury may have been influenced by the misdirection and then continued:

"The plaintiffs' counsel contended that the onus of showing the miscarriage is on the party asking for the new trial. I think this is clearly right, but I think that onus is satisfied when the facts appear to be as above set out, and that unless the party opposing the grant of the order for a new trial can point to some further fact, the conclusion that there was a miscarriage must be drawn."

1. This approach to the onus of proof, whilst conforming with the literal terms of the judicature rule, did not last, at least in jurisdictions such as New South Wales which were governed by the common law rule rather than the judicature rule. As Dixon CJ observed in Balenzuela v De Gail[261], historically there had been cases, like Holford, that placed the onus upon the party seeking a new trial to establish that the error might possibly have affected the result. But there were many cases where the burden was upon the party resisting the new trial. The "accepted practice in New South Wales" was the latter[262]. In the passage from which Dixon CJ quoted, this accepted practice was described in terms that plainly placed the onus upon the party resisting the new trial[263]:

"[T]he court would as a rule grant a new trial where evidence had been improperly admitted: but that in its discretion the court might refrain from granting a new trial if it was affirmatively satisfied that the actual verdict returned could not have been affected by the inadmissible evidence."

1. The accepted practice in New South Wales had previously been applied by Dixon J, who spoke of how "the prima-facie right to a new trial is displaced" by an error that "cannot reasonably be supposed to have affected the result"[264]. In Balenzuela, whilst Dixon CJ doubted whether the question of onus of proof was really of any importance, he reiterated that the "true view" was that[265]:

"at common law it was necessary to grant a new trial unless the court felt some reasonable assurance that the error of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result".

1. It is plain beyond argument that in the passage above Dixon CJ was approving the accepted practice in New South Wales as the common law rule that the onus of proof lay upon a party asserting that there should be no new trial because the error could not reasonably be supposed to have influenced the result. Indeed, his Honour also observed that "the burden is the other way" in the language of the judicature rule, which suggested "an intention that the court should not grant a new trial ... unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error"[266]. The Chief Justice concluded his discussion of this point by saying that the location of the onus may form one distinction between the common law and the judicature rule. He endorsed the view in Best on Evidence[267] that the distinction between the common law and the judicature rule was that "[f]ormerly, where evidence had been improperly admitted or rejected, a new trial was granted, unless it was clear that the result would not have been affected; but this rule is reversed by the [judicature rule]".
2. In Balenzuela, Dixon CJ separately considered whether there was "[a]nother distinction" (ie a different distinction) between the judicature rule and the common law, being that "a rather more substantial wrong or miscarriage has been required under the judicature rule than had been required at common law"[268]. Unlike the distinction on the point of onus, Dixon CJ thought that this other alleged distinction was "doubtful" and considered that what Higgins J had said in Robinson & Vincent Ltd v Rice[269] was "justified in substance", namely that the position under the judicature rule was the same as that at common law before the Common Law Procedure Act 1852[270] as applied subsequently in England and New South Wales. The Chief Justice was here making a different point about the extent of a substantial miscarriage that was required. He was not contradicting what he had said immediately beforehand about the onus of proof being borne by the party alleging immateriality.
3. Nor did Dixon CJ directly contradict himself in relation to the distinction that he recognised between the common law and the judicature rule in the next paragraph when he said that a new trial should be ordered because the "basal fact is that material evidence was erroneously excluded from the consideration of the jury"[271]. His concern with "material evidence" was a concern with whether an error had been established at all, not with the materiality of the error. And as Dixon CJ said earlier in his reasons[272]:

"When material evidence has been erroneously rejected at the instance of the party who succeeds, then to deny nevertheless to the unsuccessful party the remedy of a new trial the Court must have some sure ground for saying that the reception of the evidence would not have affected the result or that it ought not to have done so."

1. The other Justices in Balenzuela all took the same approach as Dixon CJ, stating the rule in terms which effectively described it as one of an entitlement to a new trial unless the court was satisfied that the error could not have affected the verdict of the jury. In particular, Kitto J said that a new trial had to be granted unless the jury could not have been led by the rejected evidence to find for the plaintiff[273]. Windeyer J, who agreed with Dixon CJ, added that although questions of onus would not often be decisive, the position in New South Wales differed from the judicature rule - where the onus might be on the appellant - because in New South Wales an error of law "prima facie furnishes a ground for a new trial"[274].
2. The general rule for the onus in civil cases was thus settled in Balenzuela and not doubted subsequently. It was borne by the appellant who successfully opposed a new trial in McLellan v Bowyer[275]. It was again borne by the appellant who successfully opposed a new trial in Mann v Dumergue[276], where this Court accepted that a new trial must be granted unless the Court was prepared "to go so far" as to conclude that the wrongly rejected evidence could not have affected the verdict. Balenzuela, McLellan, and Mann were all cited by this Court in Dairy Farmers Co-operative Milk Co Ltd v Acquilina[277], where the Court added that the position was the same as that laid down in Crease v Barrett[278]. The Court could not have meant, by its reference to Crease v Barrett, to resurrect the heretical Exchequer rule and to abolish the doctrine of trivial error. Its focus must instead have been upon the remarks of the Court in that case that however strong the Court's opinion may have been on the "propriety of the present verdict" it could not say - that is, the Court was not satisfied that it had been shown - that the wrongful exclusion of evidence "would have had no effect with the jury"[279].
3. It was against this background that this Court decided Stead v State Government Insurance Commission[280]. In the course of ordering a new trial following a denial of procedural fairness, the Court said[281]:

"All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result."

It is not entirely clear what the Court meant by the suggestion that the appellant needed to show that the denial of natural justice had "deprived him of the possibility of a successful outcome". The most likely meaning is that by showing the possibility of a different outcome, the appellant could establish that what might otherwise be a mere procedural irregularity would amount to a failure of a statutory condition. If the failure in that case to allow the appellant the opportunity to make submissions had concerned a matter that was entirely trivial then the failure might not have reached the threshold of procedural unfairness. But since the submissions might have affected the outcome, the denial of that opportunity established procedural unfairness. The onus then was borne by the respondent to show immateriality, namely that "a properly conducted trial could not possibly have produced a different result".

1. The very next paragraph of the decision confirms this meaning. Referring to the passages of the decision of Dixon CJ in Balenzuela[282] discussed above in these reasons, their Honours said that a new trial was ordered in that case because "material evidence was wrongly rejected" (ie an error was established) but that it "would have been otherwise had the respondent been able to demonstrate that the rejected evidence could have made no difference to the result"[283].

The onus in relation to materiality in judicial review

1. Although the decision in Stead concerned an application for a new civil trial, it has been relied upon in hundreds of applications where an applicant for judicial review sought a new hearing on the basis of a decision‑maker's failure to comply with an express or implied statutory condition. The approach taken in Stead was expressly adopted by all members of this Court in Re Refugee Review Tribunal; Ex parte Aala[284]. In that case, the issues for decision were clearly separated into two distinct questions. First, had there been a denial of procedural fairness? Secondly, was the breach material? All members of the Court concluded that there had been a denial of procedural fairness. And, although McHugh J concluded that the breach was not material, all members of the Court understood Stead to have imposed the onus of proof upon the party asserting that the non‑compliance was immaterial. Hence, the various judgments expressed the approach to materiality in terms of: whether it could "be concluded" that the breach made no difference to the result[285] (Gleeson CJ); whether the court had "satisf[ied] itself" that the breach made no difference to the result[286] (McHugh J); whether the "victim of the breach", who is "ordinarily entitled to relief", is to be denied that relief because the court had been "convince[d]" that the breach made no difference[287] (Kirby J); or whether the court can positively "say that a different result would not have been reached"[288] (Callinan J). Although Gaudron and Gummow JJ, with whom Hayne J agreed on this point[289], did not expressly decide whether the condition on the statutory power requiring procedural fairness was one which denied jurisdictional error for a trivial breach or whether the triviality of breach led to refusal of relief as a matter of discretion[290], the onus of proof in either case would have been the same. The onus of proof for the exercise of a discretion to refuse relief is upon the party so asserting[291].
2. Against all of these authorities stands a single sentence in a joint judgment of three members of this Court in SZMTA[292], making a point which was not necessary for the decision and was not argued, meaning that the point cannot be authority[293]: "There is also no dispute between the parties that it is the applicant for judicial review of the decision of the Tribunal who bears the onus of proving that a jurisdictional error has occurred". That common assumption in SZMTA was incorrect.

1. Part 7 of the Migration Act was enacted within the common law context described above. In 2002, s 422B was inserted into the Migration Act[294] to provide that provisions including Div 4 of Pt 7, concerning the conduct of the review, "are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with". The provisions imply, by the long‑standing assumptions sometimes loosely described as "a common law principle of interpretation"[295], rules of procedural fairness, materiality, and onus of proof. No submission was made by the Minister to suggest that anything in the history or context of Pt 7 supported the onus of proof of materiality being borne instead by the applicant.
2. Strictly, the appellant is correct in relation to the first ground of appeal: Mortimer J, understandably following the approach of three Justices of this Court in SZMTA, was wrong to impose an onus of proof of materiality on the appellant. But, as the Minister submitted, the decision of Mortimer J should be upheld on the basis that her findings of fact were correct.
3. The Minister conceded before Mortimer J, as he did before this Court, that the failure to disclose the s 438 notification was a breach of the implied statutory condition of procedural fairness. But the Minister supported the conclusion of Mortimer J that the only manner in which any failure to afford procedural fairness could realistically have resulted in a different decision would be if disclosure of the notification might have led to the appellant making submissions about the documents or information, relevantly the Court Outcomes Report, that were the subject of that notification[296]. Whether those submissions would have made any difference depended upon whether the Tribunal had taken the Court Outcomes Report into account at all.
4. This is not a question which could realistically be affected by the location of the substantive onus of proof. Once the issue was raised by the Minister, the question was simply whether the Court Outcomes Report had any effect on the Tribunal's decision. If it did, then the decision might have been different. If it did not, then the decision would not have been different.
5. An assessment of whether the Court Outcomes Report had any effect on the Tribunal's decision is not affected by the application of any presumption. As Mortimer J correctly observed, the materiality issue would be convoluted and confusing, and a true obstacle to the appellant, if it were to be presumed that the absence of any mention of the appellant's criminal record meant that it had no effect on the Tribunal's decision[297]. Such a presumption, if recognised, is a standardised inference. It would permit inference from common experience that the failure by the Tribunal to refer to a matter meant that the matter had not been considered to have any effect at all on the decision[298]. No such common experience exists. Further, the obligation upon the Tribunal to set out reasons for decision and to make findings on any material question of fact[299] did not require the Tribunal to express in its reasons every matter that had any effect on its reasoning in a review, particularly for a review that, as was then provided, was required to be "fair, just, economical, informal and quick"[300].

3. MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024. ↑

4. cf Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. ↑

10. DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at 160-163 [96]-[107]. ↑

11. PQSM v Minister for Home Affairs (2020) 382 ALR 195 at 196-203 [1]-[28]. ↑

13. Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. ↑

Kirk v Industrial Court (NSW) (2010) 239 CLR 531. ↑

Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [39]. See earlier Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35. ↑

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. ↑

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 666 [97]. See earlier Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1. ↑

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21]. ↑

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134 [28], quoting Enichem Anic Srl v Anti-Dumping Authority (1992) 39 FCR 458 at 469. ↑

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]. See Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35]. ↑

Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 329 [21]. ↑

See CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 151 [47], 155 [70], 164 [129]; 375 ALR 47 at 59, 64, 76. ↑

Tsvetnenko v United States of America (2019) 269 FCR 225 at 245-246 [96]-[101]. ↑

33. (2019) 94 ALJR 140 at 151 [47]; 375 ALR 47 at 59. ↑

35. Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 350, referring to Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640, 642-643. ↑

36. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639-640, 642-643. See also Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. ↑

37. Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616 [67], 623 [91]-[92]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 [24]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1100 [38]; 373 ALR 196 at 205. ↑

47. (1835) 1 C M & R 919 at 933 [149 ER 1353 at 1359]. ↑

50. (2019) 264 CLR 421 at 445-446 [49]. cf Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [26]. ↑

61. (2000) 204 CLR 82 at 101 [41], 106-110 [51]-[62]. ↑

76. CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 146-147 [17]; 375 ALR 47 at 52. ↑

77. CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 148-149 [29]; 375 ALR 47 at 55, quoting Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at 552 [75]. ↑

80. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928; 383 ALR 407. ↑

SZMTA (2019) 264 CLR 421 at 444 [41]; cf John v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438-440. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-391 [91]-[93]; Hossain (2018) 264 CLR 123 at 134-135 [29]-[30], 136 [39], 145 [65]; SZMTA (2019) 264 CLR 421 at 433 [2]‑[3], 458 [90]; ABT17 (2020) 94 ALJR 928 at 948 [72], 954-955 [110]; 383 ALR 407 at 429-430, 438-439. ↑

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 492 [31]. See also Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193; Graham v Minister for Immigration and Border Protection (2017) 263 CLR 1 at 24 [40], 25-26 [44]. ↑

Stephen, "The Rule of Law" (2003) 22(2) Dialogue 8 at 8. See also Laws, The Constitutional Balance (2021) at 13, 15. ↑

Laws, The Constitutional Balance (2021) at 15. ↑

Plaintiff S157 (2003) 211 CLR 476 at 482-483 [5]. ↑

French, "Administrative Law in Australia: Themes and Values Revisited", in Groves (ed), Modern Administrative Law in Australia: Concepts and Context (2014) 24 at 29. See also Plaintiff S157 (2003) 211 CLR 476 at 482-483 [5]. ↑

Magaming v The Queen (2013) 252 CLR 381 at 400 [63]. ↑

Magaming (2013) 252 CLR 381 at 400 [64], quoting Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 580. See also Plaintiff S157 (2003) 211 CLR 476 at 513‑514 [104]; R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 at 981-982 [56]; In re McGuinness [2021] AC 392 at 415 [64]. ↑

R (Cart) v Upper Tribunal (Public Law Project intervening) [2011] QB 120 at 137 [34]. See also R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663 at 680 [30]; R (Privacy International) v Investigatory Powers Tribunal [2020] AC 491 at 543 [116], 571 [190]; Gageler, "The Constitutional Dimension", in Groves (ed), Modern Administrative Law in Australia: Concepts and Context (2014) 165 at 175. ↑

(1982) 154 CLR 25 at 70. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [No 1] (1997) 72 ALJR 574 at 577 [18]; 151 ALR 711 at 715; Plaintiff S157 (2003) 211 CLR 476 at 492 [31], 513-514 [104]; Combet v The Commonwealth (2005) 224 CLR 494 at 579 [167]; Argos Pty Ltd v Corbell (2014) 254 CLR 394 at 411 [48]; Graham (2017) 263 CLR 1 at 24-26 [39]-[44]. ↑

Plaintiff S157 (2003) 211 CLR 476 at 492 [31], 513-514 [104]. See also Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 535 [134], 546 [181]; 376 ALR 575 at 608-609, 622. ↑

Plaintiff S157 (2003) 211 CLR 476 at 514 [104]. See also Crawford and Boughey, "The Centrality of Jurisdictional Error: Rationale and Consequences" (2019) 30 Public Law Review 18 at 30-31, 34-35. ↑

Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 at 95 [128]; see generally 92-96 [119]-[128]. ↑

Clough v Leahy (1904) 2 CLR 139 at 155-156; R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 117 at 189; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 187; A v Hayden (1984) 156 CLR 532 at 540, 550; Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 157 [56]; Ruddock v Taylor (2005) 222 CLR 612 at 644‑645 [120]; Plaintiff M68 (2016) 257 CLR 42 at 98 [135]. ↑

Boughey and Weeks, "Government Accountability as a 'Constitutional Value'", in Dixon (ed), Australian Constitutional Values (2018) 99 at 99. ↑

Boughey and Weeks, "Government Accountability as a 'Constitutional Value'", in Dixon (ed), Australian Constitutional Values (2018) 99 at 103. ↑

(1908) 7 CLR 277. See Lim, "The Normativity of the Principle of Legality" (2013) 37 Melbourne University Law Review 372. ↑

Daly, "A Typology of Materiality" (2019) 26 Australian Journal of Administrative Law 134 at 144. ↑

Project Blue Sky (1998) 194 CLR 355 at 388-391 [91]-[93]; Hossain (2018) 264 CLR 123 at 134-135 [29]-[30], 136 [39], 145 [65]; SZMTA (2019) 264 CLR 421 at 433 [2]‑[3], 458 [90]; ABT17 (2020) 94 ALJR 928 at 948 [72], 954-955 [110]; 383 ALR 407 at 429-430, 438-439. ↑

See Hossain (2018) 264 CLR 123 at 137 [40], 147-148 [72]. ↑

Hossain (2018) 264 CLR 123 at 137 [40], 147-148 [72]. ↑

The ability of a reviewing court to remedy a non-jurisdictional error of law is limited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. See the discussions in Crawford and Boughey, "The Centrality of Jurisdictional Error: Rationale and Consequences" (2019) 30 Public Law Review 18 at 21, 23-27; Crawford, "Immaterial Errors, Jurisdictional Errors and the Presumptive Limits of Executive Power" (2019) 30 Public Law Review 281 at 281-282. ↑

R (Cart) v Upper Tribunal [2012] 1 AC 663 at 684 [42]. ↑

Knight, "Clarifying Immateriality" (2008) 13 Judicial Review 111 at 111 [2]-[3], 114 [14]. ↑

(1955) 91 CLR 512 at 519-520. See also Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257. ↑

114. See especially Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 88-89 [4], 116-117 [80], 153-154 [211]; Nobarani v Mariconte (2018) 265 CLR 236 at 247 [38]. See also, eg, Applicant VBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1141 at [24]; King v Delta Metallics Pty Ltd [2013] FCAFC 93 at [59]; Boyd v Thorn (2017) 96 NSWLR 390 at 403-404 [60]; Minister for Immigration and Border Protection v CQZ15 (2017) 253 FCR 1 at 15 [73]; Livers v Legal Services Commissioner [2018] NSWCA 319 at [82]; Gambaro v Mobycom Mobile Pty Ltd (2019) 271 FCR 530 at 544 [49]; Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 147 ACSR 227 at 239 [58], but cf 240 [59]. ↑

115. Fordham, Judicial Review Handbook, 7th ed (2020) at 587 [42.2]; see also 56-57 [4.1.13], 587-590 [42.2.1]-[42.2.19]. ↑

119. (1986) 161 CLR 141 at 147. See also Balenzuela (1959) 101 CLR 226 at 232-235. ↑

Thornton v Repatriation Commission (1981) 35 ALR 485 at 492, but cf 489; Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 476; Oliveira v The Attorney General (Antigua and Barbuda) [2016] UKPC 24 at [43]. See also AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 at 434 [59]. ↑

Liversidge v Anderson [1942] AC 206 at 245; Trobridge v Hardy (1955) 94 CLR 147 at 152; Plaintiff M47/2018 v Minister for Home Affairs (2019) 265 CLR 285 at 299 [39]. ↑

Smethurst (2020) 94 ALJR 502 at 535 [134], 566 [278]; 376 ALR 575 at 608-609, 649. See also Challenge Plastics Pty Ltd v Collector of Customs (1993) 42 FCR 397 at 405. ↑

Criminal Appeal Act 1912 (NSW), s 6(1); Criminal Procedure Act 1921 (SA), s 158(1)-(2); Criminal Code (Qld), s 668E(1)-(1A); Criminal Appeals Act 2004 (WA), s 30(3)-(4); Criminal Code (Tas), s 402(1)-(2); Criminal Code (NT), s 411(1)-(2); Supreme Court Act 1933 (ACT), s 37O(2)-(3). ↑

Mraz v The Queen (1955) 93 CLR 493 at 514; KBT v The Queen (1997) 191 CLR 417 at 434; TKWJ v The Queen (2002) 212 CLR 124 at 143 [63]; Lindsay v The Queen (2015) 255 CLR 272 at 294 [64]; GBF v The Queen (2020) 94 ALJR 1037 at 1042 [24]; 384 ALR 569 at 575. ↑

Watts v Rake (1960) 108 CLR 158 at 163-164; Purkess v Crittenden (1965) 114 CLR 164 at 168. ↑

Lewis v Australian Capital Territory (2020) 94 ALJR 740 at 751 [24]; 381 ALR 375 at 382, citing Brown v Lizars (1905) 2 CLR 837 at 853-854, Watson v Marshall (1971) 124 CLR 621 at 626 and Ruddock (2005) 222 CLR 612 at 631 [64], 650-651 [140]. ↑

Gould v Vaggelas (1985) 157 CLR 215 at 238; see also 219, 262. ↑

Tozer Kemsley & Millbourn (A'Asia) Pty Ltd v Collier's Interstate Transport Service Ltd (1956) 94 CLR 384 at 397-398; Pitt Son & Badgery Ltd v Proulefco (1984) 153 CLR 644 at 646. ↑

Evidence Act 1995 (Cth), s 138; Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at 500-501 [28]; 252 ALR 619 at 626; Director of Public Prosecutions v Marijancevic (2011) 33 VR 440 at 445 [17]; R v Mokbel (2012) 35 VR 156 at 184 [309]. ↑

Benning v Wong (1969) 122 CLR 249 at 308-309; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at 310-311 [118]-[125]. ↑

(2020) 94 ALJR 928 at 954 [109]; 383 ALR 407 at 438. ↑

Guo v The Commonwealth (2017) 258 FCR 31 at 56 [83]. ↑

See, eg, SZMTA (2019) 264 CLR 421 at 446 [50], 447 [55]‑[57], 467 [121]; MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [11]. ↑

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36. ↑

Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40]; Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]. ↑

145. Wei (1991) 29 FCR 455 at 476. See also AQM18 (2019) 268 FCR 424 at 434 [59]. ↑

146. McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 385 ALR 405 at 407 [5]. ↑

147. Guo (2017) 258 FCR 31 at 55 [80], 56 [83], 77 [151]. ↑

148. (2017) 258 FCR 31 at 56 [83]. See also Burgess v The Commonwealth (2020) 276 FCR 548 at 567 [68]. ↑

152. SZMTA (2019) 264 CLR 421 at 460 [95]. See also Quin (1990) 170 CLR 1 at 35‑36; ABT17 (2020) 94 ALJR 928 at 948 [72], 954 [105]; 383 ALR 407 at 429-430, 437; PQSM v Minister for Home Affairs (2020) 382 ALR 195 at 211 [75], 228 [150]. ↑

153. When the appellant arrived in Australia on 22 January 2006, he held a student visa which ended on 15 March 2008. The appellant applied for a different class of student visa on 30 August 2007, which was refused, and he made an invalid protection visa application on 31 October 2013, before making his valid protection visa application. ↑

158. Project Blue Sky (1998) 194 CLR 355 at 388-391 [91]-[93]. cf Hossain (2018) 264 CLR 123 at 134 [29], 145 [65]; SZMTA (2019) 264 CLR 421 at 444 [44], 458‑459 [90]; MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 at [75]. ↑

161. Migration Act, s 414A (as it stood at the relevant time). ↑

166. Migration Act, s 420(1) (as it stood at the relevant time). ↑

167. Migration Act, s 420(2) (as it stood at the relevant time). ↑

170. Migration Act, s 423; see also s 418(2)-(3). ↑

173. Migration Act, s 425; see also ss 425A and 426. ↑

175. (2019) 264 CLR 421 at 433 [2], 440 [27], 440-441 [29], 442-443 [34]-[38], 447 [57], 452 [72], 454 [78], 466 [115], 466-467 [117]. ↑

181. Shinseki v Sanders (2009) 556 US 396 at 410. ↑

Keyes v School District No 1 (1973) 413 US 189 at 209. ↑

Shinseki v Sanders (2009) 556 US 396 at 415. ↑

Traynor, The Riddle of Harmless Error (1970) at 26, suggesting that this must be done "without benefit of such aids as presumptions or allocated burdens of proof". ↑

Balenzuela v De Gail (1959) 101 CLR 226 at 234‑235. ↑

Blatch v Archer (1774) 1 Cowp 63 at 65 [98 ER 969 at 970]. See G v H (1994) 181 CLR 387 at 391‑392; Russo v Aiello (2003) 215 CLR 643 at 647 [10]. ↑

Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371. ↑

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 13-14 [37]-[38]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1104 [66]; 373 ALR 196 at 212; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 95 ALJR 292 at 300 [22], 303 [39], [41], 304 [42(2)]. ↑

Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 554. ↑

Mraz v The Queen (1955) 93 CLR 493 at 514. See also Weiss v The Queen (2005) 224 CLR 300 at 308 [18]. ↑

Weiss v The Queen (2005) 224 CLR 300 at 308 [18]. ↑

R v Matenga [2009] 3 NZLR 145 at 158 [31] (emphasis in original). See also Cesan v The Queen (2008) 236 CLR 358 at 392‑393 [116]‑[122], 393‑396 [123]‑[132]. ↑

201. Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 137 [40], 147‑148 [72]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1104-1105 [66]; 373 ALR 196 at 212. ↑

202. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40. ↑

203. Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd [No 1] (1913) 16 CLR 591 at 624. See also Lubrano v Gollin & Co Pty Ltd (1919) 27 CLR 113 at 118; R v Rigby (1956) 100 CLR 146 at 151; Wurridjal v The Commonwealth (2009) 237 CLR 309 at 368 [120]. ↑

204. Lieber, Legal and Political Hermeneutics, enlarged ed (1839) at 28, 30-31. See also Goldsworthy, "Implications in Language, Law and the Constitution", in Lindell (ed), Future Directions in Australian Constitutional Law: Essays in honour of Professor Leslie Zines (1994) 150 at 157-161. ↑

Coke, Institutes of the Laws of England (1628), pt 1, bk 3, ch 8, s 464 at 272. ↑

Coke, Institutes of the Laws of England (1642), pt 2, Marlebridge, ch 25 at 148. ↑

Coke, Institutes of the Laws of England (1642), pt 2, Glocester, ch 5 at 301. ↑

(1863) 14 CBNS 180 at 194 [143 ER 414 at 420]. ↑

FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 408. See also Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109‑110; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 491; Kioa v West (1985) 159 CLR 550 at 610‑615. ↑

Kioa v West (1985) 159 CLR 550 at 610, 615; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 100 [39]. ↑

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505. See also Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 758; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49. ↑

Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; Kruger v The Commonwealth (1997) 190 CLR 1 at 36; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650 [126]. ↑

216. Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 70; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409; Coutts v The Commonwealth (1985) 157 CLR 91 at 105; Kioa v West (1985) 159 CLR 550 at 609-611; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 34‑36. ↑

de Smith, "The Prerogative Writs" (1951) 11 Cambridge Law Journal 40 at 46. ↑

Hawes, The Law Relating to the Subject of Jurisdiction of Courts (1886) s38 at 59, citing Elliott v Peirsol (1828) 26 US 328 at 340; Lovejoy v Albee (1851) 33 Me 414; 54 Am Dec 630; Rodgers v Evans (1850) 8 Ga 143; 52 Am Dec 390; Horner v Doe (1848) 1 Ind 130; 48 Am Dec 355; Mercier v Chace (1864) 9 Allen 242; Miller v Brinkerhoff (1847) 4 Denio 118; 47 Am Dec 242; Attorney General v Lord Hotham (1823) Turn & R 209 at 219 [37 ER 1077 at 1081]; Briscoe v Stephens (1824) 2 Bing 213 at 217 [130 ER 288 at 289]. ↑

Official Record of the Debates of the Australasian Federal Convention (Melbourne), 4 March 1898 at 1883-1884 (Mr Barton). See also Official Record of the Debates of the Australasian Federal Convention (Melbourne), 4 March 1898 at 1878 (Mr Symon); Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 784. See further Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 139-140 [156]-[158]; Smethurst v Commissioner of the Australian Federal Police (2020) 94 ALJR 502 at 537 [143]-[144], 555 [229]-[230]; 376 ALR 575 at 610‑611, 634. ↑

R v Loxdale (1758) 1 Burr 445 at 447 [97 ER 394 at 395]. See also R v The Justices of Leicester (1827) 7 B & C 6 at 9 [108 ER 627 at 628]; Montreal Street Railway Co v Normandin [1917] AC 170 at 174-175; Clayton v Heffron (1960) 105 CLR 214 at 247. ↑

Scurr v Brisbane City Council (1973) 133 CLR 242 at 256. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 [93]. See also at 375 [41]. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 [93]. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 392 [97]. ↑

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 321 [77], 344 [166], 354 [206]. ↑

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 391 [94]. ↑

See the more detailed historical discussion in Weiss v The Queen (2005) 224 CLR 300 at 306-312 [12]-[30]. ↑

R v Ball (1807) Russ & Ry 132 at 133 [168 ER 721 at 722]; R v Treble (1810) Russ & Ry 164 at 166 [168 ER 740 at 741]. ↑

Horford v Wilson (1807) 1 Taunt 12 at 14 [127 ER 733 at 734]; Doe v Tyler (1830) 6 Bing 561 at 563, 564 [130 ER 1397 at 1398]. ↑

Pemberton v Pemberton (1805) 11 Ves 50 at 52-53 [32 ER 1006 at 1007]; Bullen v Michel (1816) 4 Dow 297 at 319, 330 [3 ER 1171 at 1179, 1182]; Barker v Ray (1826) 2 Russ 63 at 75-76 [38 ER 259 at 263‑264]; Lorton v Kingston (1838) 5 Cl & F 269 at 340 [7 ER 406 at 433]. ↑

(1809) 11 East 307 at 312 [103 ER 1022 at 1024]. ↑

(1835) 1 Cr M & R 919 [149 ER 1353]. And see the discussion in Weiss v The Queen (2005) 224 CLR 300 at 306‑307 [13]. ↑

Wright v Doe d Tatham (1837) 7 Ad & El 313 at 330 [112 ER 488 at 495], quoted in Weiss v The Queen (2005) 224 CLR 300 at 307 [13]. ↑

Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed (1940), vol 1 at 368. This section reflected in large part his earlier writing: Wigmore, "New Trials for Erroneous Rulings upon Evidence; A Practical Problem for American Justice" (1903) 3 Columbia Law Review 433. ↑

240. See Balenzuela v De Gail (1959) 101 CLR 226 at 233; Hembury v Chief of the General Staff (1998) 193 CLR 641 at 656 [38]; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 485 [66]. ↑

245. Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 563. See also Balenzuela v De Gail (1959) 101 CLR 226 at 234; Nobarani v Mariconte (2018) 265 CLR 236 at 247 [38], discussing the meaning of "substantial wrong or miscarriage" in Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1). ↑

247. Wilde v The Queen (1988) 164 CLR 365 at 371‑372; Kalbasi v Western Australia (2018) 264 CLR 62 at 88 [71], 111 [136], 121 [160]. See also Mraz v The Queen (1955) 93 CLR 493 at 514; Driscoll v The Queen (1977) 137 CLR 517 at 524‑525; R v Storey (1978) 140 CLR 364 at 376; Pollock v The Queen (2010) 242 CLR 233 at 252 [70]; Filippou v The Queen (2015) 256 CLR 47 at 54‑55 [15]; Lane v The Queen (2018) 265 CLR 196 at 212 [56]. ↑

248. Collins v The Queen (2018) 265 CLR 178 at 193 [41]; OKS v Western Australia (2019) 265 CLR 268 at 282-283 [38]-[39]. See also Gallagher v The Queen (1986) 160 CLR 392 at 412‑413; Wilde v The Queen (1988) 164 CLR 365 at 372; Festa v The Queen (2001) 208 CLR 593 at 631 [121], 636 [140], 661 [226]; Conway v The Queen (2002) 209 CLR 203 at 226 [63]; Arulthilakan v The Queen (2003) 78 ALJR 257 at 269 [62], 270-271 [68]‑[69]; 203 ALR 259 at 275, 276‑277; Kamleh v The Queen (2005) 79 ALJR 541 at 547 [29], 549 [39]; 213 ALR 97 at 104, 106; Darkan v The Queen (2006) 227 CLR 373 at 402 [95], 407 [117]; Baini v The Queen (2012) 246 CLR 469 at 481‑482 [33], 484 [40]; Lindsay v The Queen (2015) 255 CLR 272 at 276 [4], 301‑302 [86]; Castle v The Queen (2016) 259 CLR 449 at 472 [65], 477 [81]; R v Dickman (2017) 261 CLR 601 at 605 [4]‑[5], 620 [63]; Kalbasi v Western Australia (2018) 264 CLR 62 at 88 [71], 121 [159]‑[160]; Lane v The Queen (2018) 265 CLR 196 at 212 [56], 213 [59]. ↑

249. Lane v The Queen (2018) 265 CLR 196 at 207 [38]. ↑

(2018) 265 CLR 236 at 247 [38]. See also BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1104‑1105 [66]-[68]; 373 ALR 196 at 212‑213. See further Wehbe v Minister for Home Affairs (2018) 92 ALJR 1033 at 1037 [24]; 361 ALR 1 at 6; OKS v Western Australia (2019) 265 CLR 268 at 280‑281 [34]. ↑

Rather than other duties or powers: see Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 at 61 [26]; 385 ALR 212 at 220; ABT17 v Minister for Immigration and Border Protection (2020) 94 ALJR 928 at 958 [125]; 383 ALR 407 at 443. ↑

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 137 [40], 147‑148 [72]. ↑

Neder v United States (1999) 527 US 1 at 8-9. ↑

Supreme Court of Judicature Act 1873 (36 & 37 Vict c 66), Schedule, r 48 (emphasis added). ↑

Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed (1940), vol 1 at 368. ↑

258. Mraz v The Queen (1955) 93 CLR 493 at 514; TKWJ v The Queen (2002) 212 CLR 124 at 143 [63]; Lindsay v The Queen (2015) 255 CLR 272 at 294 [64]. ↑

260. [1909] VLR 497 at 526 (italics in original). ↑

262. (1959) 101 CLR 226 at 234, quoting Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 563 and citing Macleod v Attorney-General (NSW) (1890) 11 LR (NSW) 218; [1891] AC 455 and Makin v Attorney-General (NSW) [1894] AC 57. ↑

263. Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 563. ↑

264. Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533 at 554. ↑

267. Phipson and Best, The Principles of the Law of Evidence, 12th ed (1922) at 70. ↑

274. (1959) 101 CLR 226 at 244-245. See also at 238 (Taylor J), 239 (Menzies J). ↑

276. Unreported, High Court of Australia, 22 August 1963 at 3-4. ↑

279. Crease v Barrett (1835) 1 Cr M & R 919 at 933 [149 ER 1353 at 1359]. ↑

283. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (emphasis added). ↑

291. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 459 [93]. ↑

R v Warner (1661) 1 Keb 66 at 67 [83 ER 814 at 815]; Felton v Mulligan (1971) 124 CLR 367 at 413; Baker v The Queen [1975] AC 774 at 787-789; Coleman v Power (2004) 220 CLR 1 at 44‑45 [79]; CSR Ltd v Eddy (2005) 226 CLR 1 at 11 [13]. See also Cross and Harris, Precedent in English Law, 4th ed (1991) at 158‑161. ↑

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), Sch 1, item 6. ↑

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 442 [34]. ↑

MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [39]. ↑

MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [48]‑[49]. ↑

See Thorne v Kennedy (2017) 263 CLR 85 at 101 [34], citing Calverley v Green (1984) 155 CLR 242 at 264. ↑

Migration Act, ss 430(1)(c), 430(1)(d). See, similarly, DL v The Queen (2018) 266 CLR 1 at 12 [32]. ↑

301. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 330 [5] (emphasis added). ↑

302. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69]. ↑

303. MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [55]. ↑

304. MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [56]. ↑

313. MZAPC v Minister for Immigration and Border Protection [2019] FCA 2024 at [54], [57]. ↑