How can you tell whether the Tribunal has committed a jurisdictional error (and therefore know whether to recommend to your client that she/he pursue an application for judicial review in the Federal Circuit Court after the Tribunal has made a decision to affirm the refusal of a visa application)?
Perhaps this may seem to be a confounding, existential or metaphysical question, one that can cause you to run screaming down the hallways of your office, tear your hair out, have nightmares, set yourself on fire, jump off the Harbour Bridge, or resort to other “self-help” remedies to avoid having to think about the issue!
Well, if you feel this way, you can take comfort in knowing that you are not alone, and that the question of what is and what is not jurisdictional error is something that is capable of confounding the brightest legal minds in Australia.
In fact, a decision that was handed down today by the High Court, in Hossain v Minister for Immigration and Border Protection (2018) HCA 34, provides an excellent illustration of this point.
The Hossain case involved an application for a partner visa by a citizen of Bangladesh.
The application had been refused in the first instance by a delegate of the Minister on the basis that 2 criteria for the grant of the visa had not been met: 1) the application had not been made within 28 days of the date that the applicant’s previous visa had ceased, and the delegate was not satisfied that there were compelling reasons not to apply Schedule 3 criteria; and 2) the applicant did not satisfy a Public Interest Criterion requiring that either no debt be owing by the applicant to the Commonwealth or that appropriate arrangements had been made for payment.
When the case came before the Tribunal, the Tribunal made what may be called a “Waensila error”: it considered only whether there had been compelling reasons not to apply Schedule 3 in existence at the time of the application, and not, as the Full Court’s decision in Waensila requires, whether there were compelling reasons not to apply Schedule 3 at the time that the Tribunal exercised the power or discretion whether not to apply Schedule 3.
In fact, the Minister actually conceded in the Federal Circuit Court proceedings that there had been a Waensila error.
However, when the case was heard by the Tribunal, the applicant admitted that he did owe an outstanding debt to the Commonwealth, and further, that he had not made arrangements to pay that debt, although he did intend to pay the debt.
So, on the basis that the Public Interest Criterion requiring that there be no debt owing to the Commonwealth or arrangements in place for the debt to be paid, the Tribunal affirmed the refusal of the application.
The applicant then sought judicial review in the FCC – and importantly, by the time that the judicial review application was heard in the FCC, he had paid the debt owing to the Commonwealth.
The FCC found that there had been a jurisdictional error (of the Waensila variety). And the FCC rejected the Minister’s arguments that there had been an independent ground for the decision to affirm the refusal of the application – the non-payment of the debt. The FCC therefore allowed the application and granted constitutional writs to the applicant, setting aside the Tribunal’s decision and remitting it back to the Tribunal for re-determination in accordance with law.
So was there jurisdictional error or not? The case went from the FCC to the Full Court of the Federal Court, which held that even though there had been a “jurisdictional error” that error had not “stripped the Tribunal’s authority to make the decision to affirm the delegate’s decision to refuse the visa.
The case then went on to the next stage of appeal, to the High Court.
The High Court unanimously held that there had been no jurisdictional error in the case.
The majority of the High Court, Chief Justice Kiefel and Justices Gageler and Keane, held that there had been no jurisdictional error because the Waensila error of failing to consider whether there were compelling reasons not to apply Schedule 3 in existence at the time of decision would have made no difference to the outcome: because the Public Interest Criterion had not been satisfied as at the time of the Tribunal decision, there was no possibility of a successful outcome, and therefore there was no jurisdictional error of the kind that would require the grant of relief to the applicant.
Interestingly and extremely importantly, Justices Edelman and Nettle, in separate reasons from those given by the majority, both observed that there may be unusual circumstances in which the error is “so fundamental” that the error may be “jurisdictional” (requiring the administrative decision to be set aside) even where there is no possibility of a successful outcome by the applicant.
Justices Nettle and Edelman observed that these types of errors may include a denial of procedural fairness “regardless of the effect that may have had on the result reached by the decision maker” and a case where the decision maker has decided a case by having reference to the wrong criterion, regardless of whether the decision maker would have reached the same result by making the decision with regard to the correct criterion.
So, one can conclude from the High Court’s decision in Hossain that, normally, jurisdictional error will not be found when the error would not have changed the outcome in the case (for example where a visa is refused due to non-satisfaction of two separate criteria, and while an error has been made with respect to one criteria, the result would not have been changed , because the visa application would inevitably have been refused due to non-satisfaction of the second criterion.
The main exception to the principle that jurisdictional error will not be found when there is no possibility of a successful outcome will be in cases where the applicant has been denied procedural fairness.
So might it be said that procedural fairness “trumps all”?
Emphasis on the lower case “t”!!!!!!!!!!!!