LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
High Court of Australia · 2024
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321
Nobody disputed that the Tribunal had misapplied a Ministerial Direction, yet the Full Court held that the error made no difference. What did the High Court say a reviewing court must ask instead?
In Mpwerempwer the joint reasons of Gordon, Steward, Gleeson and Beech-Jones JJ considered an argument built on LPDT [29], that a reviewing court may look only at the decision-maker's reasons and cannot infer that an unmentioned matter was addressed. At [64] their Honours called that contention 'too prescriptive'. A court cannot cure an omission in the reasons by supplying new reasons, which would be impermissible merits review, but the reasons read in context 'may support the drawing of an inference, on the balance of probabilities, that a matter, although not expressly adverted to, must be considered to have been taken into account or addressed'. Whether a decision-maker discharged the statutory function is answered from all the material bearing on it, including the reasons ([65]); in the joint reasons the applicant seeking to establish jurisdictional error bears the onus ([66]). Edelman J, agreeing generally with the joint reasons, added on that ground that where the question is whether satisfaction was manifested in the reasons, the onus 'is not entirely an onus upon an applicant' ([110]). So read LPDT [29] as barring a court from supplying new reasons or reworking the decision, not as barring ordinary inference from the reasons and other evidence.
What happened?
The appellant, a Vietnamese national, arrived in Australia in 1997 and was granted a spouse visa in 2008. Between November 2011 and August 2017 he was convicted of drug offences on three occasions and sentenced to imprisonment each time ([17]). In May 2019 the visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth), and a delegate refused to revoke the cancellation ([18]).
The Administrative Appeals Tribunal affirmed the delegate's decision, being not satisfied that there was "another reason" to revoke. In deciding that, it was required by s 499(2A) to comply with a Ministerial Direction, Direction 90 ([19]). Three of its findings under the Direction's treatment of the seriousness of the appellant's offending were challenged: it found that types of crime deemed "very serious" and "serious" both pointed to a "very serious" characterisation, and it found that he had re-offended after a formal warning, although there was no evidence of any warning ([21]-[23], [27]-[28], [34]).
Snaden J dismissed the application for judicial review ([25]). The Full Court of the Federal Court (Markovic, Thomas and Button JJ) held that the Tribunal had erred on all three points but that the errors were not material, and so not jurisdictional ([26]). Before the High Court there was no dispute that the Tribunal had erred ([30]).
What did the Court decide?
The appeal was allowed with costs. The Full Court's orders were set aside, and in their place the Federal Court's orders were set aside, certiorari issued to quash the Tribunal's decision not to revoke the cancellation, and mandamus issued requiring it to determine the request according to law ([37]).
All seven Justices joined in the orders ([37], [50]); the reasons are in two judgments, the joint reasons at [1]-[37] and Beech-Jones J's at [38]-[50].
Proposition
What is the principle?
Joint reasons, with Beech-Jones J agreeing on the principles. The joint reasons set out to give "practical guidance in terms with which all the Court agree", setting aside "differences of expression and emphasis previously adopted by individual Justices" ([8]). Their starting point was that a statute containing an express or implied condition is "not always to be interpreted as denying legal force and effect to every decision that might be made in breach of that condition" ([4]). In most cases an error is jurisdictional only if material:
> "in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred." ([7])
Some errors are jurisdictional whatever their effect, apprehended or actual bias being the example, and in others the potential for an effect is inherent, as with unreasonableness in the final result ([6]). Otherwise the question is whether the decision made "could, not would, 'realistically' have been different had there been no error"; "realistic" marks off possibilities that are "fanciful or improbable", and meeting the threshold "is not demanding or onerous" ([14]).
The inquiry is backward-looking. The applicant must prove, on the balance of probabilities, what decision was made and how, and materiality is determined by inferences from the evidence ([10], [13]). Where the error is a denial of procedural fairness by failure to put a fact or issue to the applicant, a court may readily infer that the applicant might have addressed it with further evidence or submissions ([15]). In sum:
> "unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met" ([16])
with relief still subject to utility or discretion.
Application, joint reasons. The Tribunal's non-compliance with Direction 90 was one error, with the three misapplications as its particulars ([31]). Each bore on its assessment of Primary Consideration 1, which weighed against revocation, so the evaluative conclusion could have been different ([35]). A reviewing court does not "reconstruct a decision-making process, rework the apparent basis upon which a decision has been made, or rewrite the reasons for decision" ([29]), and "[i]t would involve improper speculation to attempt to discern how the Tribunal would have reasoned" had it followed the required process ([36]).
Application, Beech-Jones J. His Honour agreed that there was one error rather than three, but added that even if there were several, materiality is not assessed "by reference to each such breach separately without regard to the others" ([41]). Because the Direction makes seriousness an evaluative input into the weight of the primary considerations, a court could be satisfied the outcome would inevitably have been the same only by assuming the Tribunal's function ([48]-[49]).
Why does this case matter?
This is the decision to reach for when a problem has already established an error and the question is whether that error invalidates the decision. It sits after Hossain in the line of authority, and the two are best used together: Hossain for how the threshold arises, LPDT for how a court is to handle it on the evidence.
A common slip is to treat LPDT as a procedural fairness case; the error here was in applying a Ministerial Direction, and procedural fairness appears as one illustration at [15]. Another is to quote earlier formulations of the threshold from memory rather than checking them against this decision.
Exam and application relevance
In a problem question, identify the condition and the breach, then ask whether the error falls into a category where materiality is inherent or irrelevant ([6]). If it does not, state the threshold in the joint reasons' words and test it against the decision as it was actually made and recorded, using the reasons as the evidence. Say what could have been different, and whether anything affirmatively shows the outcome would inevitably have been the same ([16]). Where the decision involved weighing considerations, the Court's treatment of the Tribunal at [35]-[36] and Beech-Jones J at [48]-[49] is the closest illustration.
Where a problem turns on what a decision-maker did or did not consider, LPDT [29] is read with the recorded clarification from Mpwerempwer: a court may draw inferences from the reasons and other material but may not supply new reasons.
Cite the joint reasons for the guidance and Beech-Jones J for his own reasons on application.
Check your understanding
1. What did the Full Court find about the Tribunal's reasons, and what did it conclude about their effect? 2. Which Justices wrote the guidance on materiality at [6]-[16], and what did Beech-Jones J say about it at [38]? 3. What does "realistic" distinguish in the joint reasons' test, and how demanding did the Court say the threshold is? 4. Who bears the onus on materiality, and what was sufficient to discharge it in this case? 5. What did the joint reasons say about a court attempting to discern how the Tribunal would have reasoned had it followed the required process ([36])? 6. How did Beech-Jones J's approach to multiple breaches differ in emphasis from the joint reasons' treatment of a single error?