The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the construction of derivative refugee status provisions. In September 2014 the Secretary of the Department of Justice and Border Control denied the appellant’s application for refugee status. In March 2015, the Nauruan Refugee Status Review Tribunal affirmed that decision, and the appellant appealed to the Supreme Court. In April 2016. the appellant married a man who had been recognised as a refugee. The appellant’s lawyers made an application for derivative refugee status on the basis of her dependency on her husband’s status, which was granted in August 2016, and for which she was granted a ‘Refugee Determination Record’ stating that the Secretary had determined the appellant was ‘recognised as a refugee’ (at [7]–[8]). In December 2016, the process for acquiring derivative status was changed, including s 31(5), which was deemed to have commenced in May 2014, and provided that ‘[a]n application made by a person under section 31(1)(a), that has not been determined at the time the person is given a Refugee Determination Record, is taken to have been validly determined at that time’.

In June 2017, the Supreme Court held that the Tribunal had made an error of law in failing to adjourn its hearing to allow the appellant to Continue reading →

The High Court has dismissed an appeal against a decision of the Full Federal Court on jurisdictional error and errors of law in the context of partner visa applications. Hossain, a Bangladeshi citizen, was refused a partner visa on the basis that the criteria in the Migration Regulations 1994 (Cth) had not been met. The Administrative Appeals Tribunal affirmed that decision on its merits, ruling that Hossain had not met the requirements of submitting an application within 28 days of ceasing to hold a previous visa, unless the Minister was ‘satisfied that there are compelling reasons for not applying’ this requirement, and that he did not have outstanding debts to the Commonwealth. Hossain then applied to the Federal Circuit Court for judicial review of the Tribunal’s decision (by which time he had met the debt payment criteria) on the basis of jurisdictional error. In those proceedings, the Minister conceded that the Tribunal had erred in addressing whether there were compelling reasons not to apply the timing criterion as at the time of the application for the visa: it should have examined whether those compelling reasons existed at the time of its own decision. The FCCA rejected the Minister’s contention that this was nonetheless not a jurisdictional error because the public debt criterion had still not been met. The FCAFC majority (Flick and Farrell JJ) agreed with the FCCA that the error was jurisdictional, but ultimately agreed with the Minister that this error had not removed the Tribunal’s authority to affirm the delegate’s decision (at [13]). Mortimer J, in dissent, also held that the error was jurisdictional, but concluded that because Hossain had repaid the debt, the public interest criterion would no longer be an issue for the Tribunal, and the relief he sought could be granted (see [14]ff).

The High Court (Kiefel CJ, Gageler and Keane JJ, Nettle J, Edelman J) unanimously dismissed the appeal. The joint judges held that the Tribunal’s error in relation to timing did not rise to the level of jurisdictional error. Edelman J (with whom Nettle J agreed), also held that the error was not jurisdictional because it was neither a fundamental error nor one that could have affected the Tribunal’s decision: the ‘lack of materiality’ meant the error was not jurisdictional.

After reviewing the facts and decisions below, the joint judges turned first to conceptual debates about the term ‘jurisdiction’ (see [17]–[19]), noting that the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1 had picked up Jaffe’s emphasis on jurisdiction goes to the gravity of an organisational procedural error when it ‘express[ed] the constitutionally entrenched minimum content of the Continue reading →