Hossain v Minister for Immigration and Border Protection: A Material Change to the Fabric of Jurisdictional Error?

Abstract

In Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, the High Court of Australia unanimously endorsed a pragmatic approach to jurisdictional error. This case note argues that the decision, which introduces a threshold of materiality not quite in line with earlier judicial authority, occasions a less-than-desirable reformulation of the concept. It argues that the Court’s reliance on factual circumstances extends beyond the established principles of statutory interpretation, in relation to context and precedent, and administrative law, in relation to the constitutionally significant legality/merits distinction. The case note argues that the dissenting judgment of Mortimer J in the Federal Court of Australia decision in Minister for Immigration and Border Protection v Hossain (2017) 252 FCR 31 is preferable as it avoids the departures from principle inherent in the High Court’s reasoning and ultimately carries fewer problematic implications for individuals attempting to challenge administrative decisions.