Not all errors are equal

The nature of jurisdictional error has long confounded and confused. Not all errors of law are equal. Some errors deprive decision makers of authority, others do not. Some errors may be reviewed; the review of others may validly be excluded. There is a distinction of principle between errors characterised as jurisdictional errors and errors characterised as non-jurisdictional errors of law on the face of the record[1].

In short, it may not be difficult to fall into error in determining the consequences of an error.

Two recent High Court decisions, both involving a tribunal’s determination of federal migration law, have held that an error of law is not always a jurisdictional error. As recourse to the courts was only available for jurisdictional error, the tribunal’s original decisions were upheld.

Non-material errors

In Hossain v Minister for Immigration[2] a foreign citizen was denied a partner visa because mandatory criteria under the Migration Act were not satisfied. The Administrative Appeals Tribunal affirmed that decision, but the Minister subsequently conceded that the tribunal made an error of law in applying one of the criteria. The Federal Circuit Court held that this constituted jurisdictional error, invalidating the tribunal’s decision, even though completely separate criteria bound the Minister to deny the visa application. The essential question on appeal to the High Court was whether a non-material error by the decision maker was a jurisdictional error.

The High Court held that a decision maker is required to proceed on a correct understanding of the applicable law, but that an error of law will not be jurisdictional in nature if the error does not materially affect the decision. Ordinarily, a statute which imposes a condition to be observed in a decision making process is not to be interpreted as denying legal force to every decision that might be made in breach of the condition. Rather, the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.[3] Ordinarily, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision[4]. As the Minister was bound, on other grounds, to deny the visa application, the error was not jurisdictional.

Superfluous questions

In Shrestha v Minister for Immigration[5] the Court similarly held that an error of law which could have no impact on a tribunal’s decision was not jurisdictional in nature and could not invalidate it.

This case involved related appeals against decisions to cancel the visas of students whose course enrolment circumstances had changed. Dispute arose as to the construction of the relevant legislation, resulting in claims that the tribunal had misconstrued the provisions leading to legal error. However, given that the ultimate decision of the tribunal was based on the valid exercise of a discretion, the postulated legal error could have had no impact on the tribunal’s decisions and denied that error the character of a jurisdictional error. The postulated legal error, which the plurality found unnecessary to consider, at most led the tribunal to ask a superfluous question.

The decision is consistent with other long-standing authorities, in both public and private law, to the effect that acting on a mistaken basis as to right or power does not necessarily vitiate the act if it would be authorised on another basis.

No more confusion?

What might be confusing is that, if these cases did not include an element of the tribunal having other reasons for being held to be correct, the legal error would have constituted a jurisdictional error. Its character as a jurisdictional error was lost because, in the circumstances but without regard to the actual error, its determination could have no effect on the outcome. Presumably, the same result could have been reached by the Court exercising its residual discretion to deny relief based on the absence of practical consequences arising from the error.

The Court’s clarity as to what constitutes jurisdictional error also came with a caveat. Two Justices[6] in Hossain (and the others, by implication)[7] noted that there 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, such as an extreme case of denial of procedural fairness, but no such circumstances arose in that case.

Key takeaway

It remains true that not all errors are equal. Although it is important that administrative decision makers proceed on a correct understanding of the law, an error may not be fatal if it will not lead to the wrong decision.

Careful statutory construction is vital but “it is unlikely to be an intention that the legislature is taken to have that a decision be rendered invalid by an immaterial error”.[8]

[1] This distinction in England is reduced to almost vanishing point but in Australia is relevant to decisions of inferior courts but not to administrative tribunals.
[2] Hossain v Minister for Immigration and Border Protection [2018] HCA 34.
[3] Hossain (n1) [29] (Kiefel CJ, Gageler and Keane JJ).
[4] Hossain (n1) [31].
[5] Shrestha v Minister for Immigration and Border Protection [2018] HCA 35.
[6] See Nettle J at [40] and Edelman J at [72].
[7] Kiefel CJ, Gageler and Keane JJ repeatedly qualified their analysis with the adverb “ordinarily”.
[8] Hossain (n1) at [67] (Edelman J).

Authored by:
Lionel Hogg, Partner