What If?: LPDT v MICMSMA [2024] HCA 12
22.4.2024
What if, what if, what if, what if
What if I have no hope?
What if, what if, what if, what if
What if I have no dream?
j-hope, ‘What if…’ (see also translation by Doolset)
In order to determine whether a decision is affected by jurisdictional error, a court must ask two questions. Has an error occurred, in breach of the statutory conferral of power to make that decision? And, if so, was that error material to the decision-maker’s ultimate exercise of power? For an error to be material, an applicant for review must establish that there is a realistic possibility that, if not for the error, the decision-maker’s ultimate exercise of power could have been different. (For example: where a decision-maker has decided to refuse a visa, a ‘material’ error is one where there is a realistic possibility that, if not for the error, they may have decided not to refuse the visa.)
In other words, in assessing materiality, courts must consider the counter-factual: what if this error had never occurred?
The High Court’s recent judgment in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT) addresses and clarifies how these principles will apply to a decision involving a complex weighing exercise of multiple competing considerations. In reaffirming that the threshold of a ‘realistic possibility’ is ‘not demanding or onerous’ (LPDT at [14]), the High Court has provided useful guidance to judges, applicants and decision-makers dealing with these difficult questions.
Factual and Procedural Background
LPDT is a citizen of Vietnam. Following numerous convictions, his visa was cancelled pursuant to s 501(3A) of the Migration Act. He made representations to the Minister seeking to revoke the cancellation of his visa; a delegate of the Minister refused to revoke the cancellation. LPDT applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate’s decision.
On 7 July 2021, the Tribunal affirmed the delegate’s decision. As part of this decision, the Tribunal was required to consider ‘primary’ and ‘other’ considerations specified in Ministerial Direction No 90 (Direction 90). (For other recent High Court authority on Direction 90, see Chris Honnery’s recent post on Ismail.) In the course of its reasoning, the Tribunal erred in its construction or application of Direction 90 in several respects:
Paragraph 8.1.1(1)(a) of Direction 90 required the Tribunal to have regard to the fact that specified ‘types of crimes or conduct’, as set out in that subparagraph, were deemed to be viewed ‘very seriously’ by the Government and the community. LPDT had not committed any of the specified crimes or conduct. Nonetheless, the Tribunal found that this subparagraph ‘militate[d] strongly in favour of a finding that [LPDT’s] criminal offending has been of a very serious nature’: LPDT at [21]. In LPDT’s appeal to the Full Federal Court, the Full Federal Court found that there was no ‘articulated comprehensible connection between [that] conclusion and the articulated basis for it’: LPDT v MICMSMA [2023] FCAFC 64 (LPDT FCAFC) at [64].
Paragraph 8.1.1(1)(b) required the Tribunal to have regard to the fact that certain ‘types of crimes or conduct’, as set out in that subparagraph, were deemed ‘serious’ by the Government and the community. While LPDT’s convictions for various drugs offences did fall within one of these ‘types of crimes or conduct’, and would hence have been deemed ‘serious’, there was, again, no identified or comprehensible basis for the Tribunal’s conclusion that LPDT’s convictions ‘militate[d] strongly in favour of a finding that [LPDT’s] criminal offending has been of a very serious nature’ (emphasis added): LPDT at [21]; LPDT FCAFC at [119].
Paragraph 8.1.1(1)(g) required the Tribunal to have regard to whether an applicant ‘has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of former offending in terms of the [applicant’s] migration status’. The Tribunal found that ‘[t]his consideration is directly relevant in this case’, and that LPDT had ‘re-offended since having been formally warned or since otherwise being made aware in writing about the consequences of further offending in terms of his migration status’: LPDT at [23]. But, as the Full Federal Court found, there was not even a ‘skerrick’ of evidence to indicate that LPDT had, in fact, been warned of the consequences of his offending for his visa status: LPDT at [28]; LPDT FCAFC at [149].
These, however, were only three of the range of factors considered by the Tribunal in its application of Direction 90 to the facts of LPDT’s case. Many other factors which were not challenged would have weighed strongly against LPDT in any event. The Tribunal ultimately found that Primary Consideration 1 under paragraph 8.1 of the Direction (‘protection of the Australian community from criminal or other serious conduct’), which included but was not restricted to the factors listed above, weighed ‘very strongly’ in favour of not revoking the cancellation of LPDT’s visa, as did Primary Consideration 4 (the expectations of the Australian community). While the Tribunal found that ‘other considerations’ under paragraph 9 of the Direction were either ‘neutral’ or provided ‘slight weight in favour’ of LPDT, the Tribunal found that those factors did not outweigh ‘the strong, combined and determinative weight’ attributed to Primary Considerations 1 and 4 (LPDT at [24]).
LPDT sought judicial review of the Tribunal’s decision. At first instance, the Federal Court did not accept that the Tribunal’s decision involved any legal error. On appeal, as noted above, the Full Federal Court accepted that the Tribunal had erred in its construction or application of paragraphs 8.1.1(1)(a), (b) and (g) – but it found that those errors were not ultimately material to the Tribunal’s exercise of power, given the weight afforded by the Tribunal to other factors weighing strongly against LPDT and given that ‘so little weigh[ed] in [LPDT’s] favour’: LPDT FCAFC at [124]. In other words, the Full Federal Court found that there was no realistic possibility that the outcome of the Tribunal’s weighing exercise could have been any different if not for the Tribunal’s errors: LPDT FCAFC at [103], [124] and [159].
LPDT sought, and was granted, special leave to appeal to the High Court. On 10 April 2024, the High Court allowed LPDT’s appeal, quashed the Tribunal’s decision and directed the Tribunal to determine LPDT’s application for review according to law.
The High Court Judgment
The Minister did not challenge the Full Court’s conclusions that the Tribunal had erred in its construction or application of Direction 90. As a result, the High Court proceedings focused instead on the question of whether any error by the Tribunal was material to its ultimate exercise of power (to affirm the delegate’s decision).
The reasons of the High Court plurality (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) begin with a useful and detailed restatement of principle on materiality (LPDT at [2]-[16]), in which the Court noted some ‘uncertainty or confusion’ by other courts ‘about the meaning and effect of some of the language used by the Court in identifying the principles to be applied in assessing materiality’ (LPDT at [8]). To address this uncertainty, the plurality sought to give ‘practical guidance in terms with which all the Court agree’, setting aside ‘differences of expression and emphasis previously adopted by individual Justices’: LPDT at [8].
The plurality observed that both the identification of error, and the identification of whether that error was material, is a ‘wholly backward-looking’ inquiry, assessed by reference to ‘the decision that was made and, depending on the nature of the error, how that decision was made’: LPDT at [10]. How an applicant for review will discharge their onus of proof in establishing the historical facts necessary to answer those questions will depend on the nature of the error, but ‘ought to be neither difficult nor contentious’: LPDT at [10]-[12]. In establishing materiality, the question is ‘whether the decision that was in fact made could, not would, “realistically” have been different had there been no error’ – with the term ‘realistic’ ‘used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable’ (LPDT at [14], emphasis in original).
As in its previous judgment in Nathanson v Minister for Home Affairs [2022] HCA 26, the plurality in LPDT reiterated that, while the applicant bears the onus of establishing materiality, ‘meeting that threshold is not demanding or onerous’: LPDT at [14]. (For further discussion on Nathanson, see Brandon Smith’s post for AUSPUBLAW.) In particular, the LPDT plurality emphasised that ‘a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker’, and that in assessing materiality the line between judicial review and merits review must be maintained: LPDT at [15]. The LPDT plurality noted that ‘[t]his case affords an example’ where that line had been crossed: LPDT at [15].
At first instance and in the Full Federal Court, the Tribunal’s erroneous reasoning had been discussed as though it involved multiple distinct errors. The plurality found that ‘[t]hat was a misidentification of the error’: LPDT at [31]. Each ‘error’ was, in truth, a particular instance of a single error: the Tribunal’s failure to comply with s 499(2A) of the Migration Act, which required the Tribunal to exercise its powers in accordance with relevant Ministerial Directions (including, in this case, Direction 90). Each ‘aspect of non-compliance’ was hence a ‘particular’ of a single, broader error: failure by the Tribunal to comply with a condition governing the making of its decision (LPDT at [31]; see also at [41]).
The plurality found that each particular of the Tribunal’s error ‘contributed to the evaluative and discretionary decision that the Tribunal made’; each bore upon the assessment of Primary Consideration 1, and upon the weight given by the Tribunal to that consideration: LPDT at [35]. As the plurality emphasised, ‘[it] would involve improper speculation to attempt to discern how the Tribunal would have reasoned if it had not departed from the required process of reasoning in these respects’ – and there was hence a possibility, ‘not fanciful or improbable’, of another outcome if not for the Tribunal’s error: LPDT at [36].
Beech-Jones J wrote a brief concurrence, agreeing with the plurality as to principle and outcome but providing additional reasoning as to ‘the application of the principles stated by [the plurality] to the circumstances of this case’: LPDT at [38]. As his Honour observed, even if the Tribunal’s error had involved three errors, not one, materiality should be assessed by reference to all of the errors, not by assessing each in isolation from one another: LPDT at [41]. In agreeing with the plurality’s conclusion that the Tribunal’s error (or errors) was material, Beech-Jones J observed that it would be ‘impermissible’ for a Court to resolve questions of materiality by ‘assum[ing] the function of the Tribunal and assess[ing] for itself the relative seriousness of the appellant’s crimes and the weight to be attached to the primary considerations relating to the relative seriousness of those crimes’, and (in light of those assessments) to weigh such considerations against each other: LPDT at [49]. And yet, as his Honour emphasised, a court could only be satisfied that the error in this case was not material if it were to engage in that ‘impermissible’ exercise: LPDT at [49]. The ‘evaluative’ nature of the Tribunal’s task hence led to a ‘realistic possibility’ that the result would have been different if not for its errors: LPDT at [49].
Discussion and Implications
In a matter in which I appeared, a judge once asked of materiality: If you’ve got a wall made of 10 bricks, and you take away one or two, does that really mean the wall falls down?
The answer, of course, is: It depends how the wall was built. It depends on the shape and structure of the wall, the size of the bricks and their relationship to the other bricks around them. Materiality will depend in each case on the facts and circumstances of that case, and on the nature of the decision-maker’s task. Like any wall, it is ultimately a question of construction.
Despite the deceptive simplicity of these principles, whether an error in a given case is material can be difficult to answer. Many forms of fact-finding involve complex, evaluative assessments, reaching conclusions (for example, whether a witness is credible, or as to the severity of a person’s offending) based on the totality of the available evidence; as Lee J observed in SZTFQ v MIBP [2017] FCA 562 at [44] about the process of credibility assessment, it may not be realistic to place various aspects of a witness’s testimony ‘into hermetically sealed boxes’ independent from one another. In assessing the materiality of an error of this kind, courts may be required to determine whether one out of many different findings which contributed to a decision-maker’s ultimate conclusion ‘could’ have made a difference if that finding had not been made, in circumstances where the relevant reasons for decision provide little guidance on how this counter-factual may have played out. It can be difficult to do this in a way that at once seeks to understand how the original decision was made while respecting the distinct roles of decision-maker and court.
LPDT provides useful and cautionary advice on addressing these controversies, by re-emphasising the limited role of the court and the low threshold for materiality. In assessing whether an error was material in a broad evaluative weighing exercise, courts must not presume to re-determine for themselves what weight other findings or considerations ‘could’ or ‘would’ have had if the relevant error had not occurred. Further, courts must not engage in ‘speculative’ reasoning about how a decision-maker’s weighing exercise would have proceeded differently if not for all of the factors which contributed to that exercise. In other words, materiality is not an invitation for courts to engage in a form of de facto merits review.
One further aspect of LPDT requires comment. The plurality noted that, in respect of the Tribunal’s error regarding paragraph 8.1.1(1)(g), there was ‘no rational basis for the Tribunal’s findings’ that that criterion weighed against LPDT: LPDT at [34]. This may be relevant to the ongoing debate about whether review of a decision for illogicality or irrationality permits review of individual findings or reasoning leading up to, or materially contributing to, a state of satisfaction, or whether it merely permits review of whether the ultimate state of satisfaction required by statute is itself illogical or irrational: see Masi-Haini v Minister for Home Affairs [2023] FCAFC 126 at [47]-[54]. These are complex questions involving competing Full Federal Court authority, which may await determination by a future High Court.
Conclusion
LPDT reaffirms the distinct roles of merits review and judicial review in the Australian constitutional and administrative law context. Courts should not become involved in the decision-making process by speculating about how a decision ‘would’ have been made if the original decision-maker had reasoned differently. As reaffirmed by the High Court in LPDT, the courts must not allow themselves to be drawn into decision-making of this kind beyond their constitutional and institutional competence.
Douglas McDonald-Norman is a PhD candidate at the Gilbert + Tobin Centre for Public Law at the University of New South Wales, a barrister at Eight Selborne Chambers in Sydney, and an editor of the Australian Public Law Blog.
Suggested citation: Douglas McDonald-Norman, ‘What If?: LPDT v MICMSMA [2024] HCA 12’ (22 April 2024) <https://www.auspublaw.org/blog/2024/4/what-if-lpdt-v-micmsma-2024-hca-12/>