EDELMAN J.
Introduction
The Administrative Appeals Tribunal ("the Tribunal") affirmed the decision of a delegate of the Minister to refuse to grant a visa to the appellant. The Tribunal did so for two independent reasons. The first reason for decision involved an error of law. The second reason did not. The Federal Circuit Court of Australia quashed the decision of the Tribunal on the basis that the error of law was a jurisdictional error. A majority of the Full Court of the Federal Court of Australia allowed the appeal on the basis that, although the error in relation to the first reason for decision involved a jurisdictional error, the Tribunal retained jurisdiction because the second reason disclosed no error.
The essence of the appellant's ground of appeal in this Court, and his submissions on the appeal, was that it was an inherent contradiction for the Full Court to conclude that the Tribunal (i) made a jurisdictional error, meaning that it lacked authority to make its decision, and (ii) retained authority to make its decision. That submission should be accepted. However, the simplicity with which this submission was expressed conceals deep fissures and uncertainties underlying the notion and nature of jurisdictional error. In 1929, Gordon observed in relation to jurisdiction that "in no branch of English law is there more confusion and conflict". This case illustrates that, nearly a century later, there is still significant difficulty.
The Minister filed a notice of contention alleging that the decision of the Full Court should be upheld on the basis that the error of law by the Tribunal was not "jurisdictional" because the Tribunal's decision was not affected by the error. In the alternative, the Minister said that the Full Court should have withheld the exercise of its discretion to grant relief because the error did not affect the Tribunal's decision. The notice of contention should be upheld on the first ground: the error of law was not material because it was neither a fundamental error nor an error that could have affected the Tribunal's decision. The lack of materiality meant that the error was not a jurisdictional error. The appeal must be dismissed.
Background and legislative provisions
The appellant is a citizen of Bangladesh. He came to Australia in May 2003, holding a student visa. That visa expired on 7 November 2005. In the meantime, the appellant had applied for a protection visa, which was refused. After exhausting all available applications and appeals, the appellant was unsuccessful. He attempted to make another application for a protection visa in 2008, but it was deemed invalid. Between September 2008 and January 2013, the appellant was in Australia as an unlawful non-citizen. In January 2013, the appellant made another application for a protection visa. This application was refused by a delegate of the Minister, which refusal was affirmed by the Refugee Review Tribunal. Subsequent requests for ministerial consideration were refused.
In 2010, the appellant met the woman who, in 2013, became his de facto partner. In May 2015, he applied for a Partner (Temporary) (Class UK) visa. A delegate of the Minister refused that application. The appellant sought review of the decision by the Tribunal.
In order to be granted a visa, the appellant had to satisfy the decision maker that he satisfied requirements including the "criteria ... prescribed by ... the regulations". The two relevant criteria were prescribed by cll 820.211 and 820.223 of Sched 2 to the Migration Regulations 1994 (Cth).
First, cl 820.211(1)(b) relevantly provided that an applicant was required to meet the requirements of various sub-clauses. Clause 820.211(2)(d)(ii) required an applicant who is not the holder of a substantive visa and did not enter Australia holding a diplomatic visa or special purpose visa to satisfy criteria 3001, 3003 and 3004 in Sched 3 to the Migration Regulations, unless the decision maker is satisfied that there are compelling reasons for not applying those criteria. As the appellant was not the holder of a substantive visa, a diplomatic visa, or a special purpose visa, he was required by criterion 3001 to lodge his application for a visa within 28 days after the "relevant day". If he failed to do so, the appellant could only satisfy the criteria in cl 820.211 if, by cl 820.211(2)(d)(ii), the decision maker "is satisfied that there are compelling reasons for not applying [the Sched 3] criteria".
Secondly, cl 820.223(1)(a) of Sched 2 to the Migration Regulations required that an applicant must satisfy various public interest criteria. One of those, public interest criterion 4004, contained in Sched 4 to the Migration Regulations, provided as follows:
"The applicant does not have outstanding debts to the Commonwealth unless the [decision maker] is satisfied that appropriate arrangements have been made for payment."
The decisions below
The Tribunal
The Tribunal affirmed the decision of the delegate of the Minister not to grant a visa to the appellant. Two reasons were given, respectively relating to the relevant criteria set out above.
First, the Tribunal found that the last day that the appellant held a substantive visa was 7 November 2005, when his student visa expired. That was the "relevant day" for criterion 3001. The Tribunal therefore concluded that the application for a partner visa, made in May 2015, was made more than 28 days after the relevant day. The Tribunal then turned to whether there were any "compelling reasons" not to apply criterion 3001. The Tribunal held that the compelling reasons must exist at the time of the application. After considering all the circumstances at that time, including the appellant's immigration history, many aspects of his relationship with his partner and her children, and his and his partner's medical evidence, the Tribunal concluded that it was not satisfied that there were compelling reasons not to apply criterion 3001.
The second reason given by the Tribunal for affirming the decision of the delegate of the Minister was that the appellant had not satisfied public interest criterion 4004. In oral evidence before the Tribunal, the appellant confirmed that he had an outstanding debt to the Commonwealth following his visa applications and applications for judicial review. He said that he intended to repay the debt but had not made any arrangements to do so. The appellant's representative suggested that the appellant was waiting for a "final bill", and that the appellant would make arrangements to repay the debt when all bills were combined. However, in circumstances where the first debt accrued more than a decade earlier, the Tribunal did not accept that the appellant had any intention to repay the debt. The Tribunal also observed that "some days after the [appellant] attended the hearing, he has not presented any evidence that he has made the repayments or that he had made any arrangements to repay the debt".
The Tribunal's decision was delivered on 25 February 2016. In May 2016, the appellant repaid his debt to the Commonwealth.
The Federal Circuit Court and the Full Court of the Federal Court
In the Federal Circuit Court, as in the Full Court of the Federal Court and in this Court, it was common ground that the Tribunal had made an error of law in relation to criterion 3001 by considering whether compelling circumstances existed at the time of the application. The Tribunal erred because it should have considered whether compelling circumstances existed at the time of its decision.
The Federal Circuit Court (Judge Street) held that this error was a jurisdictional error, notwithstanding that the Tribunal's decision was independently supported by its conclusion that the appellant had not satisfied public interest criterion 4004. Judge Street held that the grant of a writ of certiorari was not inutile and should not be denied in the exercise of discretion. His Honour pointed to the payment of the debt by the appellant following the decision of the Tribunal. The application for judicial review was therefore allowed and writs of certiorari and mandamus were issued, quashing the decision of the Tribunal and requiring the Tribunal to determine the review application according to law.
The Full Court, by majority, allowed the Minister's appeal. The majority (Flick and Farrell JJ) held that the Tribunal's error in relation to criterion 3001 was a jurisdictional error. Nevertheless, their Honours allowed the appeal because they held that the Tribunal retained jurisdiction to determine the separate issue concerning public interest criterion 4004.
In contrast, Mortimer J would have dismissed the appeal. Her Honour held that in determining whether an error is jurisdictional it is not possible to isolate an error of law from the ultimate decision on the review. As will be seen below, that view of jurisdictional error is correct. A jurisdictional error cannot be so isolated because a finding of jurisdictional error means that the ultimate decision was made without authority. However, her Honour considered that, notwithstanding the existence of an independent ground for the decision, the error of law by the Tribunal was of sufficient gravity that it should be treated as jurisdictional. Alternatively, her Honour said, the error of law by the Tribunal had infected the Tribunal's reasoning concerning public interest criterion 4004. This meant that the error of law should be treated as jurisdictional because it might have led to a different result concerning public interest criterion 4004. Neither of these alternatives should be accepted.
The basis for the writ of certiorari to quash a decision
On the application to the Federal Circuit Court for judicial review of the Tribunal's decision, the Federal Circuit Court had, with some exceptions discussed below, the same original jurisdiction as that which this Court has under s 75(v) of the Constitution. The original jurisdiction conferred upon the High Court by s 75(v) extends to matters "in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". Despite the omission of certiorari in s 75(v), a writ of certiorari is available in original jurisdiction at least where it is ancillary to writs of mandamus or prohibition. In the Federal Circuit Court, the appellant was granted a writ of mandamus in addition to a writ of certiorari, and it was assumed by all parties that the latter was ancillary to the former (although mandamus had not apparently been sought by the appellant). Hence, it is unnecessary to consider whether certiorari might be available in wider circumstances, including whether it could be seen as an application of the essential meaning of s 75(v) or, put another way, as a "species of the same genus" as the other remedies in s 75(v), when those remedies are properly understood without the erroneous assumption that certiorari involves appellate jurisdiction. Nevertheless, this appeal requires consideration of the reasons that a writ of certiorari is generally ordered in respect of a decision made under statute, so as to appreciate the nature of the requirement of materiality that was the focus of the appeal.
Where the unlawfulness of a decision made under statute arises from an error by the statutory decision maker, there are two overlapping categories of error that can lead to a writ of certiorari. The first category comprises errors that have the consequence that the decision maker had no authority to make the decision. The second comprises errors that appear on the face of the record, irrespective of whether the decision maker had authority to make the decision. The categories overlap because an error in the second category could mean that the decision itself was unlawful and without authority. But an error might also fall within the second category if a step in the process by which the decision was reached was unlawful, even where the decision was made with authority.
The first category of error, which results in a lack of authority for the decision, is sometimes described as having the consequence that the decision was beyond power. Its consequence has been said, in terms that create difficulty, to be that the decision is a nullity or void. Nevertheless, it is established that the effect of an error of that type is that the "decision ... lacks legal foundation and is properly regarded, in law, as no decision at all" (emphasis added). In contrast, if an error of law on the face of the record does not deprive the decision maker of authority, then the decision will have legal foundation. In a passage described by Wade as "the one usage which is based on an intelligible distinction", Dr Rubinstein attempted to illustrate the difference in consequences between (i) an error that has the effect that a decision was made without authority, and (ii) other errors of law on the face of the record, by using the contrasting labels of a "void" and a "voidable" decision. Those labels have been deprecated but they have the benefit of highlighting the contrast between a decision that has no legal foundation, and one that is unlawfully made although it has a lawful foundation until set aside.
The essential difference of principle in Australian law is not between the overlapping categories of decisions made without authority and all decisions that involve errors of law on the face of the record. Instead, the distinction of principle is between errors characterised as jurisdictional errors and errors characterised as non-jurisdictional errors of law on the face of the record.
There are some different consequences that arise from errors that deprive a decision maker of authority compared with errors that do not. The most significant of these is the constraint upon State legislative power to exclude review of jurisdictional errors. However, there are significant commonalities between the unlawfulness involved in jurisdictional errors and non-jurisdictional errors of law on the face of the record. Where the decision maker is exercising statutory power the legal requirements from which both errors are established arise by construction of the statute. That exercise of construction is not dependent solely on the literal text. Rather, the statute is construed in light of the background principles and history of judicial review, as well as common law principles, including the principle that the consequences of an error that a legislature will be taken to intend will usually depend on the gravity of the error. If an error of either type has been committed, an order in the nature of certiorari operates "to remove the legal consequences [in cases of non-jurisdictional error of law on the face of the record], or purported legal consequences [in cases of jurisdictional error], of an exercise or purported exercise of power which has, at the date of the order, a discernible or apparent legal effect upon rights".
In England, where a distinction between jurisdictional error and non-jurisdictional error has been reduced almost to vanishing point, one focus has become whether the error is "material". However, ultimately, "[b]oth tribunals and the courts are there to do Parliament's bidding". Likewise, in Australia, the requirement of materiality is a common restriction upon the issue of a writ of certiorari for both types of error. In cases of decision makers acting under statute, it will usually be implied from the statute that any error of law on the face of the record does not render a decision liable to be set aside unless, as a pre-condition, the error was material in the sense that it "affected" the decision. The related nature of the two categories means that it would be curious if there were a usual implication of materiality for non-jurisdictional errors of law on the face of the record but no such usual implication for jurisdictional errors. However, on this appeal, it is unnecessary to explore the operation of a requirement of material error in the context of a non-jurisdictional error of law on the face of the record. The decision of the Tribunal, being one that fell within s 474(3)(b) of the Migration Act 1958 (Cth), was a "privative clause decision", which has the effect that a writ of certiorari from the Federal Circuit Court was available only for jurisdictional error. The essential question on this appeal is whether a non-material error by the decision maker was a jurisdictional error.
Certiorari for material breach of a pre-condition to exercise of power and residual discretion
Jurisdictional error requires materiality
In Attorney-General (NSW) v Quin, Brennan J said that in Australia the development and expansion of judicial review had "been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power". The broad test for determining whether an implied legislative condition is jurisdictional was set out by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority. Their Honours said that it was necessary to "ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid".
A close examination of legislation will usually have the effect that not every express or implied condition must be construed in a binary way. A legislative condition need not be construed as (i) always depriving a decision maker of power, or (ii) never doing so, no matter how it is breached. The question is always one of construction of the legislation: which breaches of a provision does the legislation, either expressly or, more commonly, impliedly, treat as depriving the decision maker of power? Just as it is unlikely to be concluded that Parliament intended to authorise an unreasonable exercise of power, so too it is unlikely to be an intention that the legislature is taken to have that a decision be rendered invalid by an immaterial error.
An illustration of this point is the decision of this Court in Minister for Immigration and Citizenship v SZIZO. In that case, the Refugee Review Tribunal failed to comply with the requirements of ss 441A and 441G of the Migration Act because it sent notice of the hearing to the first applicant only, instructing him to inform the other applicants of the hearing. All of the applicants attended the hearing and had the opportunity to participate. This Court said that the "admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing" (emphasis added).
The decision in SZIZO illustrates a common manner in which this concept of materiality is part of the implication that a decision will not be invalid or beyond authority where the error could not have affected the result of the decision. Another example was contemplated in the joint judgment in this Court in Kirk v Industrial Court (NSW). In that case, the erroneous reversal of the onus of proof was a jurisdictional error. However, the joint judgment observed that there may be some departures from the rules of evidence that would not warrant the grant of relief in the nature of certiorari. In other words, the joint judgment contemplated that a non-material departure from the rules of evidence might not be either a jurisdictional error or a material error of law on the face of the record.
This approach to materiality as part of the implication concerning when an action by a decision maker will go beyond power can also be seen in the classic description by this Court of the range of possible jurisdictional errors in Craig v South Australia. In that case, the Court gave examples of errors of law by an administrative tribunal that could be jurisdictional errors: identifying the wrong issue; asking the wrong question; ignoring relevant material; relying upon irrelevant material; and, in some circumstances, making an erroneous finding or reaching a mistaken conclusion. Speaking of the usual implication that arises from the statute, the Court said that if one of these errors is made:
"and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." (emphasis added)
In Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ reiterated the usual implication that for an error to be jurisdictional, what "is important" is that the error is made "in a way that affects the exercise of power". More recently, in a context relevant to the availability of relief under s 75(v) of the Constitution in light of s 474 of the Migration Act, Gageler and Keane JJ described jurisdictional error as "a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act".
In summary, although the issue will always be one of construction of the express or implied terms of the statute, 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. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. 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. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.
Residual discretion
It is also necessary to distinguish the concept of materiality from the residual discretion to refuse relief, which was also the subject of submissions on this appeal. The concept of materiality, whether it is express or implied, is necessary for a conclusion that (i) a decision is beyond power or (ii) whether or not the decision is beyond power, there is an actionable error of law on the face of the record. In contrast, the residual discretion arises if certiorari would otherwise be available for one of those reasons.
There has long been a residual discretion to refuse to issue a writ of certiorari even where a jurisdictional error is established. In R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd, this Court said that discretion might be exercised to refuse a writ of certiorari "if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made". Reference to the potential exercise of discretion where no useful result could ensue thus looks forward to the utility of another hearing. Although the residual discretion is not confined to being "forward looking", it contrasts with the usual consideration of materiality, discussed above, which looks backwards to whether the error would have made any difference to the result.
Materiality is a requirement for jurisdictional error in s 65(1)(a)(ii)
As set out above, s 65(1)(a)(ii) of the Migration Act required the appellant to fulfil requirements including the "criteria ... prescribed by ... the regulations". To grant a visa, the decision maker had to be so satisfied. On review, the Tribunal could "exercise all the powers and discretions" conferred on the decision maker by the Act, and had power, among other things, to affirm or vary the decision, or set aside the decision and substitute its own.
The context and terms of s 65 require the usual implication that an immaterial error will not invalidate a decision made under that section. The essential issue is whether an error by the Tribunal in its reasoning on one criterion was material, and jurisdictional, if the error could not have affected the other criterion on which the visa was refused.
The appellant, relying in part upon the reasoning of Mortimer J, submitted that the error of law made by the Tribunal in relation to criterion 3001 was not independent of the Tribunal's consideration of public interest criterion 4004. In oral submissions, the appellant submitted that it was possible to infer that absent the error of law by the Tribunal, and consistently with the requirements of public interest criterion 4004, the appellant would have repaid his debt or would have satisfied the Tribunal that he had made appropriate arrangements to repay the debt before the Tribunal gave its decision. This inference was said to arise from: (i) the fact of the amount of the debt, $7,404; (ii) the fact that the appellant's partner had an income; and (iii) the fact that the debt was repaid in May 2016.
The error in this submission is that an assessment of whether an error was material, in the sense that it affected the exercise of power by depriving a person of the possibility of a successful outcome, does not take place in a universe of hypothetical facts. The materiality of the error is assessed against the existing facts before the Tribunal. Those existing facts were that the appellant had not repaid his debt nor had he made arrangements to do so. As the Tribunal observed, (i) these requirements had not been satisfied at the time of the hearing before it and (ii) nine days later, at the time of its decision, the appellant had not presented any evidence that he had repaid, or made arrangements to repay, the debt. There is no evidence that the appellant sought any adjournment of the hearing before the Tribunal, or that he requested any delay before the Tribunal delivered its decision, to file any evidence about repayment of his debt or arrangements he had made to repay his debt.
The error of law by the Tribunal in relation to criterion 3001 therefore did not deprive the appellant of the possibility of a successful outcome. On the contrary, the Tribunal was required to affirm the decision of the delegate of the Minister because the appellant had not satisfied public interest criterion 4004. One requirement for the grant of a visa, contained in s 65(1)(a)(ii), was that criteria prescribed by the Migration Regulations are satisfied. That requirement was not met because public interest criterion 4004 was not satisfied. As a matter of construction of the Migration Act, the error of law made by the Tribunal in relation to criterion 3001 could not have deprived the Tribunal of its authority to make a decision that it was required to make due to its conclusion in relation to public interest criterion 4004. The error of law by the Tribunal was immaterial. It was not a jurisdictional error.
Conclusion and orders
The only errors by the Tribunal that could be reviewed were those that were jurisdictional. The absence of a jurisdictional error by the Tribunal meant that there was no power to issue a writ of certiorari to quash the decision of the Tribunal. The appeal must be dismissed with costs.