13 Sep 2018
Legal errors aren't always fatal to administrative decisions
By John Carroll, Alexander Ferguson
Legal errors in administrative decisions will not always be jurisdictional so the decision-making process can continue, particularly where a challenge to the decision is likely to fail.
Administrative decision-makers are usually careful to avoid legal error in their decisions, because the consequences of a jurisdictional error are so serious. But is every legal error a jurisdictional error? Can the decision-making process continue, and the decision stand? The High Court has recently said yes – sometimes.
Same outcome, immaterial error
The effect of the error on the outcome of a decision is important. Where the error does not affect the outcome, the decision can stand.
In Hossain v Minister for Immigration and Border Protection  HCA 34 a partner visa refusal decision was affirmed by the Administrative Appeals Tribunal on two grounds. The first ground was admitted to involve an error of law, because the Tribunal assessed it at the time of the visa application rather than at the time of its decision. If there was only one ground to refuse the decision, the error could have been jurisdictional. However, the second ground on which the Tribunal made its decision required the visa to be refused.
The Court considered the erroneous decision on the first ground as having no material effect on the outcome of the case. The requirement to refuse the visa on the second ground meant the error on the first ground was immaterial. If the first ground had been lawfully decided, the outcome would have been the same.
Questions, errors and answers
Answering the wrong questions can also be a legal error, but the decision can still stand where the outcome is not affected.
In Shrestha v Minister for Immigration and Border Protection  HCA 35 students were granted visas for specific courses. After arriving in Australia they enrolled in different courses. For example, one student was granted a visa to study a Diploma of Computing leading to a Bachelor of Information Technology, but after arriving in Australia he enrolled in cookery courses.
The Migration Review Tribunal first considered whether the students were enrolled in the same course as when the visa was granted. Having found they weren't, the Tribunal considered the "superfluous question" of whether the legislative requirement for the visa were met by the new course of study (ie. did the cookery course nonetheless meet the legislative requirement for the visa granted to study a Diploma of Computing leading to a Bachelor of Information Technology). On the basis of the superfluous question the Tribunal proceeded to consider exercising the discretion.
Chief Justice Kiefel and Justices Gageler and Keane assumed that treating the superfluous question as the basis for enlivening a discretion was a legal error. However, there was no jurisdictional error. The preliminary and necessary fact for considering the discretion had been answered: the students were no longer enrolled in the same programs. The error had "no impact on anything which the Tribunal otherwise did in finding facts and in reasoning to a conclusion as to the preferable exercise of discretion". The Tribunal's decision to affirm the cancellation of the student visas stood.
To the next question and beyond
The distinction between jurisdictional and other legal errors persists. While the distinction can be difficult to identify in practice, the Court has focused on the material effect, or gravity of the error, as a guide. These cases suggest that the graver the error, the greater the likelihood a legal error will be jurisdictional and the decision set aside.
For administrative decision-makers, the decisions should give them some comfort that legal errors in administrative decisions will not always be jurisdictional so the decision-making process can continue, particularly where a challenge to the decision is likely to fail.
As with other areas of administrative law, properly construing the statute can assist with determining the materiality of the error, and thus whether the error is jurisdictional.