The materiality obstacle becomes a little smaller

Taking on cases to judicial review has become a little easier with the High Court softening the test on materiality. This is the outcome of the High Court decision of Nathanson v Minister for Home Affairs [2022] HCA 26 on 17 August 2022.

It was a natural justice case where the applicant was not given proper notice that family violence allegations would be regarded as serious by the AAT.

The case concerned that period when a new Ministerial Direction was coming into play (No 79) which added this factor:

"The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed."

The AAT member said in relation to the change:

“there were "only minor changes to the direction" and further commented that "[m]ost of those changes relate to how we treat crimes where women and children are involved, and with respect to the conviction history I have for you in front of me, I think they're of minor relevance, those changes. That is, mostly relevance [sic] to where the applicant has been charges [sic] in relation to convictions and offences in relation to women and children."

There was a police report about domestic violence but it was not specific. In the end the AAT did find that the family violence issue had to be regarded ‘seriously’ and was a factor against exercising the discretion to revoke the visa cancellation on criminal ground. In light of what the AAT said earlier this was a breach of the natural justice. But was the breach material? Here is how the plurality decided the matter:

“33. There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of "reasonable conjecture" is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive "story" of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, "reasonable conjecture" does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of "reasonable conjecture", correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.”

The plurality concluded:

39…. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair. As a matter of reasonable conjecture, and as Wigney J reasoned, the appellant may have been able to present evidence on his own behalf or from his wife, and to make submissions that could have led to a different characterisation by the Tribunal of the nature of the appellant's offending. That evidence and those submissions may have provided more detail about the domestic violence incidents, placing them in the relevant context or providing relevant detail. The possibility that the appellant could have presented more to the Tribunal about how the incidents were to be evaluated could not be foreclosed by what was already before the Tribunal.”

As always the decision should be read in full which is found at :

https://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2022/26.html

A lot of quite difficult arguments will now no longer be necessary about proving materiality.

Nathanson was a difficult case for an applicant, the key offences were not pleasant as noted by the plurality:

“3…. The objective circumstances of the offences were serious, including in that: the victim was a seventy year old man; the attack was unprovoked and the victim was deprived of his liberty for almost 12 hours during which the appellant threatened the victim's life; and the offending involved the victim in a high speed car pursuit with police. For the offences, the appellant had been sentenced to a total effective period of imprisonment of 2 years and 6 months.”

The applicant had minor children and the applicant was supported by his wife in attempting to overcome the visa cancellation.

Here is the what the applicant had to do in this case, he lost at the delegate level, lost before the AAT, lost be the Federal Circuit Court, lost before a Full Federal Court but won unanimously in the High Court!

We cover this case in great detail in our next 10 point CPD day on migration law on Saturday 3 September 2022. See details here.