The latest from the High Court on the nature of judicial and appellate review

In the last two weeks, the High Court has handed down two important judgments in judicial review proceedings arising out of decisions made under the Migration Act 1958 (Cth). The judgments are less important for what they say about decision making under that Act than for what they say about the nature of appellate review in the Federal Court (and, by extension, in State Courts of Appeal) and of judicial review in the Federal Circuit Court (and, by extension, in State Supreme Courts exercising their constitutionally protected judicial review jurisdiction).

Jurisdictional error: Hossain v Minister for Immigration and Border Protection

In Hossain, the Administrative Appeals Tribunal determined that the appellant met neither of two cumulative criteria for the grant of a partner visa. On review in the Federal Circuit Court, it was conceded that the Tribunal had fundamentally misunderstood one of the criteria; however, it had not erred in its understanding of the other criterion. The Federal Circuit Court considered that this was sufficient for the decision to be affected by jurisdictional error and ordered that it be quashed. On appeal, two members of the Full Federal Court held that the Tribunal’s error was ‘jurisdictional’ in nature, but that it had not denied the Tribunal authority to make its decision. The third member of the Court, Mortimer J, considered that the Tribunal had fallen into jurisdictional error and that it had not been shown that there would be no utility in quashing the decision and ordering the Tribunal to remake it according to law. The appeal from the Federal Circuit Court was therefore allowed by a majority. On appeal to the High Court, all five judges held that both the Federal Circuit Court and all three members of the Full Federal Court had erred in characterising the Tribunal’s error as jurisdictional. In so holding, the Court made a number of important observations about the nature of judicial review for jurisdictional error.

In the leading judgment, Kiefel CJ, Gageler and Keane JJ explained that jurisdictional error – the kind of error by an administrative decision maker that the High Court and the State Supreme Courts have a constitutionally entrenched power to correct – comprises the failure by the decision maker to comply with a precondition to, or a condition on, the exercise of an administrative power that is of such magnitude that the decision is taken outside of the scope of the powers conferred by statute upon the decision maker. What the preconditions to the exercise of an administrative power are, what conditions limit the ways in which the power can be exercised, and what types of failure to observe those preconditions and conditions will result in a decision’s being legally ineffective, are questions of statutory construction. Established common law principles of construction ordinarily mandate that certain preconditions (such as compliance with the rules of natural justice) and conditions (such as acting within the bounds of reasonableness)  impliedly constrain the exercise of statutory power, while other conditions and preconditions may be expressly imposed by statute. Significantly, Kiefel CJ, Gageler and Keane JJ stated that it is a principle of statutory construction that where a decision is affected by a failure to comply with a statutory condition or precondition, the statute under which the decision was made is ‘ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.’ This threshold ‘would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made.’

To similar effect were the observations of Edelman J, with whom Nettle J generally agreed. Thus his Honour stated that ‘materiality’, in the sense discussed by the majority, ‘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.’ However, both Edelman J and Nettle J considered 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.’ Thus an extreme case of bias, or a failure to afford a person liable to be affected by a decision even a cursory hearing, may so fundamentally undermine an exercise of statutory power that it will be beyond the decision maker’s jurisdiction, even if the power could not have been exercised in any other way.

It follows from the judgments delivered in Hossain that jurisdictional error generally has two elements:

  1. First, the decision maker has either:
    • failed to take some step that had to be taken before the impugned decision was made, such as complying with the rules of procedural fairness or taking into account mandatory considerations; or
    • made a substantive decision that falls outside of the limits that constrain the exercise of its power, such as a decision that is legally unreasonable or that was made for an improper purpose.
  2. Second, the decision could have been different if the decision maker had complied with the relevant precondition or condition.

In Hossain, it followed from these principles that the Tribunal’s decision was not affected by jurisdictional error. The fact that the Tribunal had lawfully found against the appellant on one of the two cumulative criteria meant that its error in finding against him on the other criterion could not have affected its substantive decision.

Appellate review: Minister for Immigration and Border Protection v SZVFW

In SZVFW, the Tribunal made a decision in the respondent’s absence after he failed to attend a hearing to which he had been invited in accordance with the provisions of the Migration Act. The Federal Circuit Court held that the Tribunal’s exercise of its discretion to proceed in absentia was legally unreasonable and ordered that its decision be quashed. On appeal, the Full Federal Court held that it was insufficient for the appellant ‘simply to invite the Court, in effect, to step into the shoes of the primary judge and determine for itself whether it views the Tribunal’s exercise of the discretion … as unreasonable in the legal sense.’ In the absence of some error of legal principle, the primary judge’s evaluation of the reasonableness of the Tribunal’s actions was entitled to deference. As no such error was demonstrated, the Full Court dismissed the appellant’s appeal.

On appeal, all five members of the High Court considered that the Full Court had misunderstood the nature of its task. Thus Kiefel CJ stated that ‘[t]he question for the Full Court was whether the Tribunal’s decision was legally unreasonable and whether the primary judge’s reasoning in this regard was correct. It was necessary for it to decide these questions for itself rather than to defer to what the primary judge had held and require the Minister to identify some error in her Honour’s reasoning.’ Similarly, Nettle and Gordon JJ stated that ‘[t]he only question for the Full Court (and for this Court on appeal) was whether the Tribunal’s exercise of power … was beyond power because it was legally unreasonable.’ Of particular interest, however, are the discussions by Gageler J and Edelman J of the distinction between a primary judgment that is discretionary, and which thus attracts deference from an appellate court, and a primary judgment that imposes on an appellate court the obligation to ‘decide for itself’ the matters that are the subject of the appeal.

Justice Gageler stated that the line between a discretionary judgment and a non-discretionary judgment ‘is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies.’ Thus the question whether a plaintiff has made out a cause of action in negligence admits of only one correct answer (even though reasonable minds may disagree as to what the answer is), while the question what amount of general damages should be awarded to the plaintiff is open to a range of legally acceptable answers. An appeal on the former question requires the appellate court to determine the question of negligence for itself, while an appeal on the latter requires deference to the primary judge. As his Honour went on to explain, it follows from the nature of judicial power in the Australian constitutional system – in which Marshall CJ’s dictum that ‘[i]t is emphatically the province and duty of the Judicial Department to say what the law is‘ is axiomatic – that the question whether an administrative decision is tainted by legal unreasonableness has only one correct answer:

The question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is accordingly a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository. Being a question as to the limits of statutory authority, it is a question in respect of which our constitutional system demands of the judicial branch of government the ability to give a unique answer. Whilst “there has never been a pervasive notion that limited government mandated an all-encompassing judicial duty to supply all of the relevant meaning of statutes”, the constitutional entrenchment of judicial power in courts of competent jurisdiction leaves no room for doubt that “the judicial duty is to ensure that [an] administrative agency stays within the zone of discretion committed to it by its organic act”.

Similarly, Edelman J stated that even though ‘assessment of legal unreasonableness involves value judgments upon which it might be said that reasonable minds could differ’, it is ‘a legal question concerned with the boundaries of the authority of the Tribunal’ that admits of only one correct answer. In the absence of a clear statutory command (the constitutional validity of which might be doubtful), there is no occasion for an appellate court to exercise ‘judicial restraint’ in determining an appeal from a primary judgment in judicial review proceedings.

The judgments in SZVFW indicate that some statements made in recent years by the Federal Court concerning its task on appeal in judicial review proceedings reveal an unduly narrow conception of the Court’s appellate jurisdiction and should no longer be followed. In such proceedings, the Federal Court’s task is quite simply to examine the record below and determine for itself whether the claim of jurisdictional error made by the appellant before the primary judge – and any new claim of jurisdictional error that the appellant is granted leave to advance – is made out on the basis of that material.

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