Clarifying Jurisdictional Error: [2018] HCA 34
Thursday 16 August 2018 @ 2.45 p.m. | Legal Research | Immigration
In Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34 (15 August 2018), the High Court unanimously upheld the Administrative Appeals Tribunal’s (‘The Tribunal’) decision to deny a visa to Mr Hossain, despite the error of law made in its decision making.
Facts
Mr Sorwar Hossain, a Bangladesh citizen, applied for a grant for a partner visa in May 2015. This application was refused by a delegate of the Minister for Immigration and Border Protection (‘the Minister’). Mr Hossain then applied to the Tribunal for a review of this decision. The Tribunal affirmed the delegate’s decision, reasoning that it was not satisfied that Mr Hossain fulfilled the two criteria prescribed by Schedule 2 cll 820.211(2)(d)(ii) and 820.223(1)(a) of the Migration Regulations 1994 (Cth).
The two criteria were:
- The application for a visa must be made within 28 days of an applicant’s prior visa ceasing, unless the Minister is satisfied that there were otherwise compelling reasons for non-application
- The applicant must not have outstanding debts to the Commonwealth unless the Minister is satisfied that there has been appropriate arrangements made for payment
The Tribunal was not satisfied that either criterion were met, it was on this basis that it affirmed the delegate’s decision.
Mr Hossain then applied to the Federal Circuit Court of Australia for judicial review. The Minister agreed that the Tribunal had made an error in law in regards to the first criteria. The Tribunal in its decision had looked at whether or not Mr Hossain had reason to not apply at the time of application, when it should have looked at Mr Hossain’s reasons at the time of the Tribunal decision. The Federal Circuit Court found that this error was jurisdictional in nature, and so invalidated the Tribunal’s decision.
On Appeal to the Full Court of the Federal Court, the majority of the Federal Court found that the error was jurisdictional in nature, however, distinguished that the Tribunal still held the authority to affirm the delegate’s decision.
Decision
In its decision, the High Court clarified the circumstances under which an error of law would be jurisdictional in error. Kiefel CJ, Gageler and Keane JJ in [25] explained, quoting Selway J:
“[J]urisdictional error is an expression not simply of the existence of an error but of the gravity of that error … the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately ‘a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised’.”
They concluded, that the distinction that was made at Federal Court was incorrect, at [26], they elaborated:
“Although ultimately correct in the result, the majority in the Full Court was therefore wrong to distinguish between a decision involving jurisdictional error and a decision wanting in authority. They are one and the same.”
In the current case, the High Court concluded that there was an error that was present in the Tribunal’s decision in regards to the first criterion. However, Kiefel CJ, Gageler and Keane JJ further explained at [35]:
“Here the Tribunal breached that implied condition [of proceeding with a correct understanding and application of the applicable law] 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.”
Nettle and Edelman JJ in their judgements agreed in that there was an absence of jurisdictional error. And that this error of law was immaterial, since the Mr Hossain did not meet the second criterion at the time of the decision, and so the Tribunal would have rejected the application nonetheless.
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Sources:
Hossain v Minister for Immigration and Border Protection & Anor [2018] HCA 34
