The Limits of Fairness and Fact-Finding in Judicial Review: MZAPC v Minister for Immigration and Border Protection

Abstract

The appeal to the High Court of Australia in MZAPC v Minister for Immigration and Border Protection raises important questions about how, and why, applicants for judicial review of administrative decisions must prove that a legal error was material, in the sense that it deprived them of the possibility of a different outcome. The current approach to proving materiality invites a review court to engage with a decision on its merits so as to determine whether an applicant has discharged this onus of proof. This column argues that approach fails adequately to vindicate legal limits on public powers, and, as such, is both a source of injustice and incorrect at a level of principle.