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A recent High Court decision has provided government litigators with a helpful re-examination of the old adage—what is jurisdictional error?

On 15 August 2018, the High Court unanimously dismissed an appeal from the Full Court of the Federal Court involving a refusal by the Minister for Immigration and Border Protection to grant a visa (Hossain v Minister for Immigration and Border Protection [2018] HCA 34). The question for the High Court went to the heart of the concept of jurisdictional error. In answering that question, the High Court also provides guidance on the correlation between two distinct concepts—whether an error is jurisdictional and the concept of futility—which have long been intertwined and their relationship often misunderstood.


The Appellant applied for a partner visa under the Migration Act 1958, which was refused by a delegate of the Minister. The Appellant sought merits review before the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed the delegate’s decision and relevantly found that the Appellant did not meet two of the criteria for the grant of the visa—first, the appellant did not meet the requirement that there be compelling reasons for the grant of the visa and second, the appellant did not meet a relevant public interest criterion for the grant of the visa as he had outstanding debts to the Commonwealth and had not taken appropriate steps to arrange for payment of the debt. In effect, the Tribunal had affirmed the decision on two separate and independent bases.

The Appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia.  The Minister accepted that the first basis for the Tribunal’s decision was affected by an error of law based on an earlier Full Court decision (see Waensila v Minister for Immigration and Border Protection (2016) 241 FCR 121). However, the Minister submitted that the error of law could not amount to jurisdictional error as the independent second basis was not affected by an error.

It was argued that the Tribunal’s exercise of power remained unaffected. Alternatively, the Minister argued that if the error of law was found to be jurisdictional error, the Court’s discretionary relief should be withheld because the error would not have made a difference to the Tribunal’s decision—a backward looking futility test.

The Federal Circuit Court rejected the Minister’s submissions and found that if an error was found to be a jurisdictional error by the Full Court, the fact that the Tribunal’s decision had a second basis did not change the label put on the error. The Federal Circuit Court refused to withhold relief in the exercise of its discretion.

The Minister appealed and again argued that the error in the Tribunal’s decision was not jurisdictional.  By majority, the Full Court of the Federal Court allowed the Minister’s appeal but employed a different approach to that argued by the Minister.

The Appellant appealed to the High Court where the Minister argued that the Full Court’s conclusion was correct and maintained, by way of notice of contention, that the error was not jurisdictional.

What the High Court held

The Court delivered three concurring judgments—a joint judgment of Kiefel CJ, Gageler and Keane JJ and separate judgments of Nettle and Edelman JJ.

The Court gives a detailed and updated explanation of what a jurisdictional error is and illuminates new light on the long-standing difficulties in attempting to define it. In a nutshell, the Court explains that a jurisdictional error will only arise where an error of law meets the threshold of materiality (which is determined by consideration of the relevant statute under which a decision-maker is purporting to act).

Here, the Court held that the error of law, having regard to the relevant provision of the Migration Act, could not amount to a jurisdictional error. This is because the Tribunal’s independent finding meant the error of law was not material to the decision as the Tribunal was bound to affirm the delegate’s decision given the independent finding. That is, on the basis of the Tribunal’s findings in respect of the public interest criterion, the Tribunal had no option but to affirm the decision under review. It followed that the error could not have affected the Tribunal’s decision.

Edelman J additionally provided some commentary on the issue of futility as it arises in the context of the Court’s discretion to withhold relief. As alluded to in the joint judgment, his Honour indicates that a forward looking futility test will only arise for consideration if jurisdictional error is established—the backward looking test will ordinarily determine materiality and whether the error is jurisdictional to begin with. Edelman J also held that the question of the materiality of an error will ordinarily start with the question, “did the error deprive the applicant of a successful outcome?”.


Hossain provides unique guidance on the highly complex concept of jurisdictional error. The complexity of that concept, its application in a given case and its relationship to futility is aptly highlighted by the unanimity with which the Full Court of the Federal Court and the High Court disagreed with each other on the issue. All administrative lawyers would benefit from familiarising themselves with Hossain, as it will inform the future course of the case law in this area.

The decision should be of particular interest to government lawyers, as it provides a useful authority for defending decisions of internal decision-makers and tribunals where any errors in those decisions were immaterial to the outcome. To succeed in such an argument will not necessarily require a separate and independent basis for the decision, but will involve a consideration of the threshold an error will need to reach to constitute a jurisdictional error, having regard to the relevant statutory context in which it is made.  

Sparke Helmore Lawyers acted for the Minister at all three levels of the litigation in Hossain.

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