Hossain v Minister for Immigration and Border Protection

Facts

The appellant, a Bangladeshi national, applied for a protection visa which was refused by a delegate of the Minister. The Immigration Assessment Authority (IAA) affirmed the refusal on review. The appellant contended that the IAA had failed to comply with a statutory procedural requirement under the Migration Act 1958 (Cth) in conducting its review.

Issues

1. Whether a failure to comply with a procedural requirement of the Migration Act 1958 (Cth) constitutes jurisdictional error warranting the grant of constitutional writs. 2. Whether materiality — in the sense that compliance with the requirement could realistically have produced a different outcome — is a necessary element of jurisdictional error.

Holding

The High Court held that not every breach of a statutory requirement governing the exercise of a decision-making power constitutes jurisdictional error; a legal error will only be jurisdictional, and thus warrant the grant of relief, if the error could realistically have made a difference to the outcome of the decision.

Ratio decidendi

A jurisdictional error sufficient to attract relief under s 75(v) of the Constitution requires that the error be material, meaning that compliance with the relevant statutory requirement could realistically have resulted in a different decision; immaterial breaches of procedural requirements do not deprive a decision-maker of jurisdiction.

Obiter dicta

The plurality observed that the distinction between jurisdictional and non-jurisdictional error is not always clear-cut, and that the requirement of materiality is not a separate discretionary ground for withholding relief but rather goes to whether jurisdictional error has been established in the first place. The Court also noted that the threshold of 'realistic possibility' of a different outcome does not require the court to assess the merits of what the decision-maker would have decided.

Significance

Hossain is the leading High Court authority establishing that materiality is an essential element of jurisdictional error in Australian administrative law, confining the scope of judicial review by requiring applicants to demonstrate that a legal error could realistically have affected the outcome of the impugned decision.

Key authorities

• Kirk v Industrial Court of New South Wales Kirk v Industrial Court of New South Wales (2010) 239 CLR 531applied
• Plaintiff S157/2002 v Commonwealth Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476applied
• Minister for Immigration and Multicultural Affairs v Yusuf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323considered
• Craig v South Australia Craig v South Australia (1995) 184 CLR 163considered
• SZMTA v Minister for Immigration and Border Protection SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421cited
• Minister for Immigration and Border Protection v WZARH Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326considered