Hossain v Minister for Immigration and Border Protection

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]ā€“[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 supervisory jurisdiction of a State Supreme Court to enforce “the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court” in terms of the “distinction between jurisdictional and non-jurisdictional error”‘ (at [20]). This traditional distinction ‘cannot be avoided’ but could be expressed in ‘more modern language’, which the joint judges offered (at [23] and [24], citations omitted):

Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have “such force and effect as is given to it by the law pursuant to which it was made”


Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as “involving jurisdictional error” is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a “nullity”, in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”.

Here, the FCAFC majority, while ultimately correct, erred in distinguishing a decision involving jurisdictional error and a decision ‘wanting in authority’: they are the same thing (at [26]). Whether or not a decision involves a failure to comply with an express or implied statutory condition that is grave enough to constitute a jurisdictional error depends on the construction of the statute (at [27]). That decision-makers must proceed on the basis of correct legal principles, ‘correctly applied’ is an implied condition of statutory decision-making authority (at [29]). But there is ordinarily also a threshold of ‘materiality’ for non-compliance, which ‘would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made’, and unless complying with the condition could have resulted in a different decision the breach will not be material (at [30], [31]).

As applied here, the Tribunal was required to form its own conclusion on the Minister’sĀ  duties under s 65 of the Migration Act 1958 (Cth), namely to either grant the visa or refuse it on the basis of being satisfied (or not) of the criteria in the Regulations (see [32]ā€“[33]). That satisfaction or non-satisfaction is conditioned by the requirement that the Minister, his or her delegate, or the Tribunal on review, must proceed on a correct understanding of the law (at [34]). The joint judges held, at [35]:

Here the Tribunal breached that implied condition by misconstruing and misapplying the criterion which related to the timing of the making of the application. The breach, however, could have made no difference to the decision which the Tribunal in fact made to affirm the decision of the delegate. That was because the Tribunal was not satisfied that the public interest criterion was met, and, on the findings which the Tribunal made, the Tribunal could not reasonably have been satisfied that the public interest criterion was met. The Tribunal in those circumstances had no option but to affirm the decision of the delegate.

Mortimer J’s view that the Tribunal might have delayed its decision to allow Hossain to pay his debt and meet the public interest criterion was only ‘conjecture’: ‘[t]he Tribunal was not asked to delay making its decision’ and did not believe Hossain’s promise to pay the debt (at [36]). Consequently, the Tribunal’s error did not rise to the level of a jurisdictional error (at [37]).

Edelman J likewise dismissed the appeal, holding that the Tribunal’s error of law was not material, in that it was neither fundamental nor an error that could have affected its ultimate decision: this ‘lack of materiality’ means it was not a jurisdictional error (at [46]).

After reviewing the facts of the case (at [47]ff), and the decisions below (at [52]ff), Edelman J turned to the requirements for granting a writ of certiorari to quash a decision affected by jurisdictional error (at [60]ff). Edelman J emphasised that there were two overlapping categories of error that can lead to the writ: first, ‘errors that have the consequence that the decision maker had no authority to make the decision’, and secondly, ‘errors that appear on the face of the record’, irrespective of authority (at [61]). ‘The categories overlap because an error in the second category could mean that the decision itself was unlawful and without authority. But an error might also fall within the second category if a step in the process by which the decision was reached was unlawful, even where the decision was made with authority.’: at [61]. In Australia, the difference is not between the overlapping categories, but between errors characterised as jurisdictional or non-jurisdictional (at [63]). Making that distinction depends on the construction of the statute under which the decision-making power is exercised, with reference to its text, the background principles of jurisdiction and the history of judicial review, as well as common law principles such as ‘the principle that the consequences of an error that a legislature will be taken to intend will usually depend on the gravity of the error’ (at [64]). Certiorari operates to remove the legal consequences of the error in either case (at [64]). The requirement that the error be material is common to both types, and is usually implied from the statute and means the error ‘affected’ the decision (at [65]). This appeal, Edelman J noted, focuses on whether a non-material error was a jurisdictional error (at [65]).

After reviewing the leading cases on the materiality requirement (at [66]ff), Edelman J stated that ‘an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome‘ (at [72]).

Here, the context and terms of s 65 of the Migration Act, which requires the decision maker to be satisfied that an applicant fulfils the requirements, including the criteria in the Regulations, require ‘the usual implications than an immaterial error will not invalidate a decision made under that section’ (at [75]ā€“[76]). For Edelman J, the essential issue was whether the Tribunal’s error in reasoning on one criterion was ‘material, and jurisdictional’, if that error ‘could not have affected the other criterion on which the visa was refused’ (at [76]). Edelman J rejected the appellant’s argument on the lines of Mortimer J’s reasoning that, absent the Tribunal’s error of law, he would have paid his debt and satisfied the other criterion (at [77]): assessing the materiality of an error ‘does not take place in a universe of hypothetical facts’ but instead the existing facts before the Tribunal, and those facts were that the debt remained unpaid, and there were no arrangements to repay it, contrary to the condition in the criterion (at [78]). Consequently, the Tribunal’s error did not deprive the appellant of a successful outcome, but rather the Tribunal had to affirm the delegate’s decision because the appellant had not satisfied the public interest criterion (at [79]). Its error here was immaterial and was not a jurisdictional error (at [79]).

Nettle J agreed substantially with the reasons of Edelman J, adding observations that there may be a range of circumstances where an error is jurisdictional even though a party is not deprived of the possibility of a successful outcome: in addition to Edelman J’s example of respect for the dignity of the individual, Nettle J added the possibility of a decision-maker who is required to address a single specific criterion making the error of addressing the wrong criterion (at [40]). That did not occur here because while the Tribunal’s self-misdirection on the timing criterion was an error of law, it still retained jurisdiction to determined the application on the public interest criterion, which it did (at [41]). Because of the wide range of potential errors within the variety of statutory schemes, it is not possible to come to an a priori classification of which errors will or will not deprive a party of a successful outcome: ‘Perhaps the most that can or should be said on the subject is that, if an error is jurisdictional, in the scheme of things it will not infrequently be the case that it will deprive a party of a possibility of a successful outcome.’ (at [42]).

High Court Judgment [2018] HCA 34 15 August 2018
Result Appeal dismissed
High Court Documents Hossain
Full Court Hearing [2018] HCATrans 52 21 March 2018
Special Leave Grant [2017] HCATrans 259 13 December 2017
Appeal from FCAFC [2017] FCAFC 82 25 May 2017
Trial Judgment, FCCA
[2016] FCCA 1729
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.