1Where an administrative decision-maker makes findings of deliberate dishonesty or deception against a party based on material not disclosed in the show cause notice and without affording the party an opportunity to respond, this constitutes a denial of procedural fairness — even where the show cause notice flagged the possibility of dishonesty findings on other discrete matters.
2Applying Nathanson v Minister for Home Affairs [2022] HCA 26, MZAPC [2021] HCA 17 and SZMTA [2019] HCA 3, the materiality threshold for procedural unfairness is undemanding: the applicant need only establish a realistic possibility (reasonable conjecture) that the decision could have been different, not what would have occurred; the court should not resolve disputed factual counterfactuals or make credit findings to determine materiality.
3Findings of dishonesty are inherently serious and have the potential to colour a decision-maker's assessment of all other matters; accordingly, such findings made without procedural fairness are unlikely to be immaterial even where the decision rested on multiple independent grounds of non-compliance.
Case Details
Citation[2023] NSWSC 153
CourtNSWSC
JurisdictionNew South Wales
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