Hossain v Minister for Immigration and Border Protection
High Court of Australia · 2018
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
The Tribunal misapplied a visa criterion and the Minister admitted it. The applicant still lost. What did the High Court ask once the error was conceded?
Hossain's threshold is now applied in LPDT's terms. In LPDT the joint reasons of Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ cite Hossain at [29] for the proposition that a statute containing an express or implied condition is ordinarily to be interpreted as incorporating a threshold of materiality (at [7]). At [8] their Honours said it was desirable to give practical guidance 'in terms with which all the Court agree' and that 'differences of expression and emphasis previously adopted by individual Justices have been set aside in favour of the guidance that is now set out'. At [14] the question is whether the decision made 'could, not would, "realistically" have been different had there been no error', and at [6] some errors, apprehended or actual bias being the example, are jurisdictional irrespective of any effect on the decision. At [15], where the error is a denial of procedural fairness, a court "may readily be able to infer" that the applicant might have addressed the matter by further evidence or submissions, so Hossain's refusal to speculate on its own facts is not a rule against such inferences. So use Hossain for the threshold and the independent-ground illustration, and use LPDT for how the threshold is applied and for the cases in which no separate outcome inquiry arises.
What happened?
Mr Hossain, a citizen of Bangladesh, applied for a partner visa. A delegate of the Minister refused it, and the Administrative Appeals Tribunal affirmed the refusal because it was not satisfied that two prescribed criteria were met ([4]-[6]). The first required the application to be made within 28 days of ceasing to hold a previous visa, unless the Minister was satisfied there were compelling reasons for not applying that criterion. The second was a public interest criterion that the applicant "does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment" ([5]).
On the first criterion the Tribunal asked whether compelling reasons existed at the time of the application; it should have asked at the time of its own decision. The Minister conceded that this was an error of law ([10]). On the second, Mr Hossain admitted at the hearing that he owed a debt to the Commonwealth and had made no arrangements to pay it, and nine days later, when the Tribunal decided, he had offered no evidence that he had done so ([8], Edelman J at [78]). He repaid the debt after the decision, before the Federal Circuit Court heard his application for judicial review ([9]).
The Federal Circuit Court treated the error as jurisdictional and quashed the decision. A majority of the Full Court of the Federal Court (Flick and Farrell JJ) set that aside; Mortimer J dissented ([12]-[15]).
What did the Court decide?
The appeal to the High Court was dismissed with costs ([38]). The Full Court's majority was right to set aside the Federal Circuit Court's orders, though "not exactly for the reasons which it gave" ([3]).
There were three sets of reasons: the joint reasons of Kiefel CJ, Gageler and Keane JJ ([1]-[38]), Nettle J ([39]-[43]) and Edelman J ([44]-[80]).
Proposition
What is the principle?
Joint reasons of Kiefel CJ, Gageler and Keane JJ. The starting point is construction: whether a failure to comply with an express or implied condition takes the decision outside the jurisdiction the statute confers "cannot be answered except by reference to the construction of the statute" ([27]). Their Honours then stated the ordinary position at [29]:
> "Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance."
At [30] a statute "might set a higher or lower threshold of materiality", and the threshold would not ordinarily be met if complying with the condition "could have made no difference to the decision that was made in the circumstances in which that decision was made". At [31], adopting the formulation in Wei, jurisdictional error "consists of a material breach of an express or implied condition", and "[o]rdinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision". On the facts, the breach "could have made no difference" to the decision the Tribunal made, because it could not reasonably have been satisfied of the public interest criterion and had "no option but to affirm" ([35]). Mortimer J's suggestion that the Tribunal might have delayed its decision "rises no higher than conjecture" ([36]).
Edelman J, with whom Nettle J agreed on the disposition. Edelman J reasoned that it is unlikely the legislature intended a decision to be invalidated by an immaterial error ([67]) and that, although the issue is always one of construction, "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" ([72]). His Honour added that "[t]here may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome" ([72]). Materiality is assessed against the facts that existed before the Tribunal, which "does not take place in a universe of hypothetical facts" ([78]). Nettle J, at [40], identified a circumstance in which an error is jurisdictional despite not depriving a party of the possibility of a successful outcome: where a decision maker must decide by reference to a single specified criterion and addresses the wrong one. His Honour added that "it is impossible to divine an a priori classification" of such errors ([42]).
Left open. Nettle J said it was "unnecessary and undesirable to say anything further on the residual discretion" to refuse relief ([43]), and Edelman J treated that discretion as distinct from materiality ([73]-[74]).
Why does this case matter?
Hossain is the standard illustration that a conceded error of law and a successful judicial review are different things. It also shows what a court will and will not take into account when asked to imagine a better outcome, which matters to an applicant's side as much as the Minister's.
The commonest mistake is to treat the concession as the end of the analysis, and the next is to write "the High Court held" for words that only some of the Justices wrote. The joint reasons also made a point of vocabulary that clears up later reading: the Full Court majority was wrong to distinguish "a decision involving jurisdictional error and a decision wanting in authority", because "[t]hey are one and the same" ([26]).
Exam and application relevance
In a problem question about a breach of a statutory condition, identify the condition and the breach, construe the statute for what the breach does to the decision, and then test the breach against the facts that actually existed. Where the facts give you an independent ground for the decision, say what it was and why the error could not have affected it. Do not argue from conjecture: Edelman J rejected the inference that Mr Hossain would have repaid his debt or arranged to do so, because materiality is assessed against the facts before the Tribunal ([78]). Where the error is a denial of procedural fairness, LPDT at [15] recognises that a court may readily infer the applicant might have answered with further evidence or submissions.
Do not describe the threshold as overriding the statute: [30] and [72] both leave room for the statute's own terms. For how the threshold is applied, use LPDT, the later authority recorded above, rather than Hossain's own wording.
Check your understanding
1. The Tribunal made an error of law that the Minister conceded. Why was the error not a jurisdictional error? 2. Whose reasons contain [29]-[31], and how many of the five Justices joined them? 3. Which Justices recognised that an error may be jurisdictional even though it did not deprive the person of a possible successful outcome, and what example did Nettle J give? 4. Why did the Court reject the argument that Mr Hossain would have repaid his debt had the Tribunal not erred? 5. In LPDT, what did the joint reasons say about the differences of expression used by individual Justices?