What happened
The appellant, a Mozambican national who arrived in Australia in 1995, accumulated an extensive criminal record spanning more than two decades. His offences included multiple assaults, sexual penetration without consent of a 14-year-old girl, possession of methylamphetamine, repeated breaches of violence restraining orders, driving offences and failures to comply with reporting obligations. In 2017 his Class XA subclass 785 temporary protection visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he did not pass the character test and had been sentenced to terms of imprisonment exceeding 12 months.
The appellant made representations under s 501CA(4) asking the Minister to revoke the cancellation on the basis that there was “another reason” why the original decision should be revoked. A delegate decided not to revoke. The appellant applied to the Administrative Appeals Tribunal for review. The Tribunal was required by s 499(2A) to comply with Ministerial Direction No 79, which enumerates primary considerations (protection of the Australian community, best interests of minor children, expectations of the Australian community) and other considerations (including strength, nature and duration of ties to Australia). Clause 14.2 of Direction 79 expressly requires decision-makers to consider the strength, nature and duration of any ties the non-citizen has to the Australian community, including the effect of non-revocation on immediate family members.
The Tribunal structured its reasons around the Direction’s framework. It found the appellant’s offending very serious, the risk of reoffending high, and the primary considerations of community protection and expectations weighed heavily against revocation. It gave limited weight to the best interests of two minor children. Under the “ties” heading the Tribunal noted the appellant had lived in Australia for 24 years, had a partner and four children here, and accepted the consideration weighed in favour of revocation but gave it only limited weight. Critically, the Tribunal did not separately evaluate the effect of non-revocation on the partner (who suffered from schizophrenia and paranoia) or the two adult children. The Tribunal ultimately concluded the primary considerations outweighed the other considerations and affirmed the non-revocation decision.
The appellant sought judicial review in the Federal Court under s 476A. The primary judge held that the Tribunal had failed to treat the impact on the partner and adult children as a distinct mandatory consideration required by cl 14.2(1)(b). However, applying the materiality analysis from Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421, his Honour found the failure was not material because the Tribunal’s reasons showed the protection and expectations considerations were not finely balanced and the evidence about dependence or the partner’s mental health management was limited. The judge therefore dismissed the application.
The appellant appealed to the Full Court. Mortimer J would have allowed the appeal, characterising the primary judge’s approach as an impermissible excursion into the merits and an overly broad reading of SZMTA that effectively immunised emphatic adverse findings from scrutiny. The majority (Banks-Smith and Jackson JJ) dismissed the appeal, holding that the primary judge had correctly applied the SZMTA materiality threshold and had not strayed into merits review. The appeal was dismissed with costs. The orders were made on 24 July 2020.
Why the court decided this way
The majority’s reasoning rests on a close reading of the High Court’s decisions in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 and SZMTA. They accepted that the Tribunal’s omission was a breach of an inviolable limitation on the conduct of the review: compliance with Direction 79 was mandatory, and cl 14.2 required discrete consideration of the effect of non-revocation on immediate family members. The Minister did not contest this characterisation on appeal.
The decisive question was whether that breach was material. The majority held that the SZMTA test—whether compliance could realistically have resulted in a different decision—is not confined to procedural fairness or documentary omissions. It applies equally to a failure to take into account a mandatory consideration. They rejected the appellant’s argument that a differentiated, lower threshold drawn from Peko-Wallsend applied. After tracing the evolution of jurisdictional error doctrine, the majority concluded that the Migration Act incorporates a threshold of materiality for all breaches of statutory preconditions. The practical inquiry is context-specific but always asks whether there was a realistic (not fanciful or infinitesimal) possibility of a different outcome.
Applying that test, the majority examined the Tribunal’s actual reasons. The Tribunal had found the appellant’s offending “very serious”, noted he had reoffended after a previous cancellation was revoked, and assessed the risk of further serious conduct as “high”. These findings drove the conclusion that primary considerations outweighed all other considerations. The majority then turned to the evidence actually before the Tribunal about the partner and adult children. That evidence disclosed no significant financial dependence, no specific role the appellant played in managing the partner’s schizophrenia, and long periods of separation caused by the appellant’s incarceration. The appellant had not advanced a positive case before the primary judge explaining how additional consideration of that material could realistically have tipped the balance.
The majority emphasised that the assessment is “backward-looking”: it examines how the Tribunal in fact acted and whether the omitted consideration could realistically have altered that particular decision. They rejected Mortimer J’s concern that this approach risks the reviewing court placing itself in the Tribunal’s mind and speculating on subjective persuasiveness. Instead, the exercise is objective, grounded in the reasons and evidence, and does not require the court to re-weigh factors or predict what a hypothetical open-minded Tribunal might do. Because the primary judge had confined himself to that objective evaluation and had not made fresh findings of fact or ascribed his own weights, no appealable error was disclosed.
Mortimer J’s dissent, while not forming part of the ratio, illustrates the tension. Her Honour viewed the primary judge’s detailed examination of the Tribunal’s emphatic findings as straying into the merits and as inconsistent with earlier Full Court authorities such as Martincevic v Commonwealth [2007] FCAFC 164; 164 FCR 45 and Lansen v Minister for Environment and Heritage [2008] FCAFC 189; 174 FCR 14. She considered the correct approach was to ask whether the appellant had been deprived of the possibility of a different outcome when the whole statutory task is performed according to law with an open mind. On that view the body of evidence about the partner’s mental illness and the adult children’s reliance was sufficient to create that possibility, especially given the Direction’s requirement to evaluate all considerations and attribute weight.
The majority’s disposition therefore turned on their narrower conception of the judicial review task post-SZMTA: the court must decide materiality as a question of fact on the material and reasons actually before it, without reconstructing a hypothetical lawful decision-making process detached from the Tribunal’s expressed views.
Before and after state of the law
Before Hossain and SZMTA, Australian administrative law treated a failure to take into account a mandatory relevant consideration as jurisdictional error without a separate materiality overlay. The classic statement in Peko-Wallsend was that a court would not set aside a decision if the omitted consideration was “so insignificant that the failure to take it into account could not have materially affected” the outcome, but this was understood as a high bar that was rarely met for expressly mandated considerations. Cases such as Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 treated non-compliance with a s 499 direction as a constructive failure to exercise the review jurisdiction, without requiring the applicant to prove a realistic possibility of a different result. Similarly, Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 and other Full Court authorities regarded breach of a Direction as jurisdictional because it conditioned the valid exercise of the s 501CA(4) power.
The High Court in Hossain introduced materiality as an aspect of the statutory construction exercise that determines when a breach results in a decision lacking the characteristics necessary to be given legal force. The plurality used Peko-Wallsend as an example of when the threshold would not be met, but the focus shifted to whether the error was of sufficient gravity. SZMTA then applied that concept to procedural fairness and s 438 notification errors, repeatedly using the phrase “realistic possibility” of a different decision. The majority in SZMTA warned against intruding into the Tribunal’s fact-finding while requiring courts to evaluate whether omitted material was of “marginal significance”.
After PQSM the law is clearer: the SZMTA materiality threshold is the single test for determining whether any breach of an inviolable limitation on the conduct of a Part 5 or s 501CA review is jurisdictional. Intermediate courts must not maintain a lower or different threshold for considerations errors or Direction breaches. The inquiry is fact-specific, onus lies on the applicant, and the court may draw inferences from the Tribunal’s reasons and the evidence. However, the decision leaves unresolved the precise degree of “realism” required when an entire mandatory consideration involving discretionary weight is omitted, as opposed to a single document. Mortimer J’s dissent highlights continuing uncertainty about whether the reviewing court must assume an open-minded decision-maker performing the entire task lawfully or must instead anchor the analysis tightly to the actual reasons given.
Subsequent cases have treated PQSM as confirming that SZMTA’s language applies uniformly. The decision reinforces that emphatic adverse findings on primary considerations can render omitted family impact considerations immaterial, provided the evidence about those impacts is objectively weak.
Key passages with plain-English translation
Paragraph [140]: “It follows that after SZMTA, the requirement of materiality applies to a failure to take into account a mandatory consideration in the same way as it applies to a failure to accord procedural fairness or to any other breach of an inviolable limitation governing the exercise of statutory power.”
Plain-English translation: There is now one test for whether a mistake is serious enough to invalidate a decision. It does not matter whether the mistake is ignoring a required factor, denying a fair hearing, or something else. If there was no realistic chance the mistake changed the result, the decision stands.
Paragraph [142]: “It also follows from what we have said that it is putting an unwarranted gloss on SZMTA to say, as the appellant submits here, that the threshold for determining materiality is that there must be a possibility of a successful outcome that is more than ‘infinitesimal’, or that materiality only rules out ‘a very slender technical victory’…”
Plain-English translation: Do not try to rewrite the High Court’s words with new phrases like “not infinitesimal”. The test is whether there was a realistic possibility of a different outcome. Adding extra glosses risks turning the test into something the High Court did not say.
Paragraph [148]: “Where a decision-maker has failed to address a mandatory consideration, the task of determining whether taking it into account could realistically have made a difference will sometimes be difficult… In conducting that evaluation, the line between judicial review and merits review may be difficult to discern.”
Plain-English translation: When the Tribunal skips an entire required topic, judges have a harder job deciding if it mattered. They must look at all the evidence on that topic but must not start deciding the case themselves. The boundary is blurry, yet the judge must still draw it.
Paragraph [152]: “His Honour’s conclusion also shows an objective assessment of the material that was not considered, in the context of the Tribunal’s actual reasons for decision. Given the significant weight that the Tribunal placed on the primary considerations of the protection of the Australian community and the expectations of that community… that conclusion was correct.”
Plain-English translation: The trial judge looked at the family-impact evidence objectively against what the Tribunal actually said. Because the Tribunal had given very strong weight to community safety and expectations, the family evidence was not enough to make a realistic difference. That was the right call.
Paragraph [155]: “It is true that it is not always necessary for an applicant to demonstrate by evidence what he or she would have done had the relevant error not been made… But in this case, the appellant was seeking to rely on the possibility of further material coming out before the Tribunal… In those circumstances, this submission does not rise above speculation.”
Plain-English translation: Sometimes an applicant does not have to prove exactly what extra evidence they would have given. But if they are saying “the Tribunal might have asked more questions and got better evidence”, they must at least point to what that evidence might have been. Here they did not, so it was just guesswork.
What fact patterns trigger this precedent
PQSM is triggered whenever an applicant alleges that the Tribunal has failed to treat a matter required by Direction 79 (or its successors) as a distinct consideration, and the Minister or respondent argues the failure was not material. The paradigm case is a visa cancellation or revocation review where the Tribunal addresses primary considerations in detail but deals only cursorily or implicitly with “other considerations” such as ties to Australia, impact on family members, or impediments to return.
The precedent is especially relevant where the omitted consideration concerns adult family members (who fall outside the “best interests of minor children” primary consideration) or a partner’s health or financial dependence. It applies with equal force to protection visa reviews under Part 7AA where the Authority fails to consider country information or new evidence required by statute, provided the court can objectively evaluate the significance of the omitted material against the actual reasons.
The fact pattern that most clearly attracts the ratio is one in which the Tribunal’s reasons contain emphatic findings on community protection or expectations that “weigh heavily” against revocation, the evidence on the omitted consideration is objectively thin (no clear dependence, no medical linkage, long prior separations), and the applicant has not articulated a positive case showing how the consideration could realistically have altered the outcome. Conversely, the precedent suggests materiality will more readily be found where the Tribunal’s reasons indicate the matter was “finely balanced”, the omitted evidence is strong and corroborated, or the primary considerations are not overwhelmingly adverse.
How later courts have treated it
Subsequent decisions have treated PQSM as authoritative confirmation that the SZMTA materiality test is uniform across different types of error. In AEM20 v Minister for Home Affairs [2020] FCA 623 Katzmann J cited PQSM for the proposition that the court must not assume a closed mind and must ask whether proper consideration of significant matters could have led to a different conclusion. The Full Court in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 (Mortimer and Bromwich JJ) referred approvingly to the dissent’s warning against using emphatic findings to immunise decisions, but the majority position in PQSM has been followed in later revocation cases.
In DQM18 v Minister for Home Affairs [2020] FCAFC 110 the Full Court (Bromberg, Mortimer and Wheelahan JJ) cited PQSM’s discussion of the danger of the reviewing court speculating about the decision-maker’s state of mind when weight is involved. Courts have also used the decision to reject attempts to maintain a lower Peko-Wallsend-style threshold for considerations errors. In SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 Allsop CJ referred to the need for an open-minded evaluation of evidence that could sow doubt, echoing the tension between the PQSM majority and dissent.
Later courts have noted that PQSM does not preclude a finding of materiality where the omitted consideration is central and the evidence is not marginal. However, where Tribunal reasons show overwhelming weight given to community protection and the family impact evidence is weak, PQSM has been cited to dismiss applications. The decision has been followed in numerous single-judge revocation matters in 2020–2022, reinforcing that the onus remains on the applicant to demonstrate a realistic possibility of a different outcome on the actual evidence.
Still-open questions
Several questions remain unresolved after PQSM. First, the precise content of “realistic possibility” when the statutory task involves discretionary attribution of weight to multiple overlapping considerations. The majority and dissent diverge on whether the reviewing court must hypothesise an entirely fresh lawful decision or anchor itself to the actual reasons. This tension has not been authoritatively resolved by the High Court.
Second, the degree to which an applicant must adduce evidence of what further inquiries or submissions would have been made had the Tribunal complied with the Direction. PQSM suggests speculation is insufficient, yet Nguyen v Minister for Home Affairs [2019] FCAFC 128 indicates that in some procedural fairness cases evidence of what would have been done is not always required. The boundary remains fact-sensitive and unsettled.
Third, whether the materiality analysis changes when the omitted consideration is not merely one factor but an entire mandatory “other consideration” that the Direction requires to be weighed against primary considerations that the Tribunal has already found decisive. Mortimer J’s concern that emphatic findings could immunise decisions has not been directly answered.
Fourth, the interaction with the discretion to refuse relief. SZMTA noted at [79] and [85] that even if materiality is shown, relief may be refused if the outcome is inevitable. PQSM did not reach that point, leaving open how that discretion operates when the court has already found no realistic possibility of a different outcome.
Finally, the decision leaves open whether a different construction of later Directions (such as Direction 90 or 99) could alter the materiality threshold. Because the test is one of statutory construction, changes in the language of the Direction or amendments to the Migration Act could produce a different result. These questions ensure that PQSM, while clarifying the uniform application of SZMTA, has not closed the doctrinal debate about the intensity of judicial review in migration cases.