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Judicial Review

If your appeal to the Administrative Appeals Tribunal (or the ‘AAT’) regarding a visa refusal or visa cancellation case does not result in a satisfactory outcome, there is one additional avenue of appeal, that is in the Federal Court and the Federal Circuit Court of Australia. Both courts only have review jurisdiction over decisions by the AAT if the decisions have been affected by ‘jurisdictional error’.


Examples of Jurisdictional Error

  • Identifying a wrong issue;

  • Asking a wrong question;

  • Ignoring relevant material;

  • Relying on irrelevant material; or

  • An incorrect interpretation and/or application to the facts of the applicable law.

However, there is practical difficulty in determining whether an error by an AAT decision maker amounts to a jurisdictional error, as Australian courts have studiously avoided clearly delineating the scope of ‘jurisdictional errors’. They have consistently maintained the position that there is a difference between jurisdictional and non-jurisdictional errors.


Common Law Position on a Jurisdictional Error 

Justice Keifel attempted to explain the difference between jurisdictional and non-jurisdictional errors in Linett v Australian Education Union (2002) 191 ALR 597 at 60 as follows:

“The distinction between jurisdictional error and a ‘mere error of law’ is maintained, the latter being one which has been arrived at on an issue that has been entrusted to the inferior court or tribunal to decide for itself, even if the decision is wrong.”


Attempts in Defining a Jurisdictional Error

In Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at 71, the High Court stated that ‘it is neither necessary, nor possible, to mark the metes and bounds of jurisdictional error’. That is, a jurisdictional error is whatever a court says it is. A number of cases have considered the concept of jurisdictional error, which appear to have formulated the practice that making an error of fact is not a jurisdictional error, but they do not make it clear whether that error is a non-jurisdictional error of law (See for example SZGOW v Minister for Immigration and Anor (2006) FMCA 1689; SZINP v Minister for Immigration and Citizenship (2007) FCA 1747; M33 of 2004 v Minister for Immigration and Anor (2007) FMCA 684; MZYFO v Minister for Immigration and Anor (2009) FMCA 1148; and Patel v Minister for Immigration and Anor (2011) FMCA 773).


Case studies - Minister for Immigration and Citizenship and MZYZA

The Federal Court attempted to distinguish between jurisdictional and non-jurisdictional errors in Minister for Immigration and Citizenship v MZYZA (2013) FCA 572. In this case, a decision by the Department of Immigration and Citizenship (DIAC) to refuse a Protection Visa was upheld by the Refugee Review Tribunal (RRT), which had been concerned with the authenticity of certain documents. The RRT had put to the applicant that it was ‘very easy to obtain false documents in India’ but made no explicit finding that the specific documents in question, which appeared to support the applicant’s case, were fraudulent. As a result, the Federal Magistrate Court (FMC) found that the RRT had made a jurisdictional error. The Minister had argued that the ‘weight’ to be given to the letter was a matter for the RRT, and that the RRT had implicitly decided to give it little or no weight. However, the FMC found as follows (MZYZA v Minister for Immigration and Citizenship (2013) FMCA 15 at 23):


“The FMC does not accept the submission that the Tribunal implicitly decided to give the letter little or no weight. There is no indication in the Tribunal’s reasons for decision of any cognisance of the letter in the part of the Tribunal’s reasons that records its reasons for decision, as opposed to its summary of the background. It seems to me that the Tribunal overlooked the letter while weighing up the evidence and formulating its decision, as opposed to setting out the background to the case.”

The FMC went on to find that the letter was a crucial piece of evidence, and that the RRT may have reached a different conclusion had it turned its mind to the matter. The RRT decision was therefore set aside. The matter was appealed.

Justice Tracey upheld the Minister’s appeal in the Federal Court. His Honour did so primarily on the basis that a mere defect in the reasons for a decision is not a ground of jurisdictional error and that it was clear from the RRT’s reasons that it rejected the applicant’s claim to be a member of a certain political party. Justice Tracey summed up as follows:

“Even if it is accepted that the Tribunal failed to have regard to the contents of the letter, I do not consider that such a failure constituted jurisdictional error. The Tribunal was bound to have regard to and assess the first respondent’s claim to have been persecuted because of the political and religious beliefs attributed to him ... It did so. It was not suggested that the failure (if there was one) to refer to the contents of the letter occurred because the Tribunal had misdirected itself as to the proper scope of its deliberations or by failing to identify the relevant claims and integers of the claims raised by the first respondent. It was not bound to consider each and every piece of evidence which was related to those claims.”

Justice Tracey added that the letter ‘did not, in my view, amount to evidence of pivotal importance, or as being so fundamental to the first respondent’s claim, that a failure to give consideration to its contents caused jurisdictional error.’

The analysis given by Justice Tracey is highly comprehensive and thorough, but he himself admits that ‘value judgments are involved in determining whether material can be regarded as so ‘fundamental’ or so ‘important’ or so ‘overwhelming’ that a failure to have regard to it constitutes jurisdictional error’. It still seems apparent that courts have large discretion in determining whether something is a ‘jurisdictional error’ or not, and MZYZA still does not provide an example of a decision turning on classification of something found to be an error of law as jurisdictional or not.

Materiality of Legal Errors

In Hossain v Minister for Immigration and Border Protection [2018] HCA 34, 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. The question for the High Court went to the heart of the concept of jurisdictional error. In answering that question, the High Court also provided 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 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). Justice Edelman 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?”

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the High Court affirmed (by a 3-2 majority) that an error will be jurisdictional only if it is "material" to the outcome of the decision under review. In other words, courts will ask whether the avoidance of error could realistically have resulted in a different decision. If the result would have been the same even in the absence of the error, a court may be reluctant to set the decision aside.


Engaging a Barrister

A ‘barrister’ is an independent specialist advocate and advisor in law. Their highly competitive training, together with their specialist knowledge and experience, can make huge difference to outcomes of complex migration cases involving jurisdictional errors. Because of a barrister’s intimate knowledge of the Courts, their specialisation in advocacy and litigation and their ability to quickly identify the crucial points of a case, barristers are also valued for their advice and opinion work and they are often called upon to assist in this regard as soon as a dispute is indicated.In complex cases, early advice from a barrister may often save clients the cost and worry of unnecessary expenses.