The 2018 Case That Changed Everything: How It Raised the Bar for Immigration Judicial Review
Part 2 of our 4-part series on the materiality threshold in Australian immigration judicial review
In Part 1, we talked about why the Department has so much power, what judicial review actually is, and how the High Court in Plaintiff S157/2002 kept the courthouse doors open even when Parliament tried to slam them shut. We ended with a crucial point: if you want to challenge a visa decision in the Federal Court, you need to show a jurisdictional error — not just any mistake, but a mistake so serious that the decision-maker exceeded the limits of their legal authority.
That sounds straightforward enough. But here is the question nobody was asking loudly enough for decades: how bad does the mistake actually have to be?
For a very long time, the answer was: not very bad at all. Almost any legal error by a Tribunal could qualify. And then, in 2018, a Bangladeshi man's partner visa application went all the way to the High Court — and the rules changed for everyone.
This is the story of how that happened.
The Old Playbook: Craig v South Australia - What is a Jurisdictional Error?
To understand what changed, you need to understand what the law looked like before. And that means going back to 1995, to a case that had nothing to do with immigration at all.
Craig v South Australia (1995) 184 CLR 163 was a criminal case. The plaintiff was charged with serious offences in the District Court of South Australia. He could not afford a lawyer, so he asked the court to pause his trial until one could be found — what lawyers call a Dietrich application. The judge agreed. The State government was not pleased. It went to the Supreme Court and got the decision overturned, arguing the judge had made a jurisdictional error.
The High Court reversed that decision, finding that the judge had made no such error. But in doing so, the Court set out a framework for jurisdictional error that would dominate Australian administrative law for the next two decades. The key passage drew a sharp distinction between courts and tribunals.
For a court, the bar was high. Courts are authorised to decide questions of law. If a judge gets the law wrong, that is usually just an error within jurisdiction — annoying, maybe even wrong, but not the kind of mistake that voids the decision entirely.
For a tribunal, the bar was much lower. The High Court said (unanimously, through Brennan CJ, Deane, Toohey, Gaudron and McHugh JJ) that if a tribunal falls into an error of law which causes it to identify the wrong issue, ask itself the wrong question, ignore relevant material, rely on irrelevant material, or — at least in some circumstances — make an erroneous finding or reach a mistaken conclusion, and the tribunal's exercise of power is thereby affected, it exceeds its authority. That is a jurisdictional error.
Read that list again. Wrong issue? Jurisdictional error. Wrong question? Jurisdictional error. Ignored something relevant? Jurisdictional error. Relied on something irrelevant? Jurisdictional error.
That is an extremely wide net. And because immigration decisions are made by tribunals (previously the Migration Review Tribunal and Refugee Review Tribunal, now the Administrative Review Tribunal), this passage from Craig became the engine that drove immigration judicial review for decades.
Project Blue Sky and the Mandatory/Directory Divide
Three years later, the High Court added another tool to the kit. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the question was whether the Australian Broadcasting Authority's failure to comply with a particular statutory obligation made its decision invalid.
The old approach was to ask whether the statutory requirement was "mandatory" (breach = invalid) or "directory" (breach = still valid). The High Court, in a joint judgment by McHugh, Gummow, Kirby and Hayne JJ, rejected that distinction as unhelpful. It said the real question was one of legislative purpose: was it a purpose of the legislation that an act done in breach of the provision should be invalid?
In immigration law, that question almost always pointed one way. The Migration Act is dense with statutory conditions, procedural requirements and criteria. Courts routinely found that Parliament intended these provisions to be strictly observed. Breach a condition? The decision is invalid. The Tribunal exceeded its jurisdiction.
Combined with the Craig framework, Project Blue Sky created a legal landscape where the Federal Court could — and frequently did — set aside Tribunal decisions for technical errors.
The Golden Age of Technical Challenges
Let us be blunt about what this meant in practice for the decade or so leading up to 2018.
If a Tribunal made almost any identifiable legal error — misconstrued a regulation, applied the wrong test, failed to consider a piece of evidence, asked the wrong question at the wrong time — there was a very good chance the Federal Circuit Court would find jurisdictional error and send the case back to the Tribunal for a fresh hearing.
On one level, this was a good thing. It held decision-makers accountable. It enforced the rule of law.
On another level, it created a cottage industry. Lawyers and migration agents became extraordinarily skilled at finding technical errors in Tribunal decisions. Cases were sent back, re-heard, and sometimes the Tribunal reached exactly the same result — just without the technical error this time. The applicant was back to square one, having spent months (or years) and thousands of dollars to end up precisely where they started.
The courts were clogged. The Tribunal was rehearing cases it had already decided. The system was, depending on who you asked, either rigorously enforcing procedural integrity or drowning in its own perfectionism.
Something had to give. And it gave in the most unlikely of cases.
Enter the case of Hossain
The Appellant in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, was a Bangladeshi national living in Australia. He applied for a Partner (Temporary) (Class UK) visa — a subclass 820 — to stay with his partner. The case was not complicated, at least not at first.
His application ran into two problems.
Problem one: timing. Under clause 820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations, Mr Hossain needed to have applied for his visa within 28 days of his previous visa ceasing, unless the Minister was satisfied there were "compelling reasons" for not applying that requirement. The delegate found Mr Hossain did not meet this criterion.
Problem two: money. Under clause 820.223, Mr Hossain had to satisfy public interest criterion 4004 (PIC 4004), which required him to have no outstanding debts to the Commonwealth. He did have an outstanding debt.
The Appellant went to the Administrative Appeals Tribunal. The Tribunal agreed with the delegate on both counts and affirmed the refusal.
So far, nothing remarkable. But then the Appellant’s lawyers spotted something. When the Tribunal assessed whether there were "compelling reasons" to excuse the timing requirement, it looked at the circumstances as they were at the time Mr Hossain applied for the visa. That was wrong. It should have assessed those circumstances at the time of the Tribunal's own decision. A temporal error — the Tribunal asked the right question, but at the wrong point in time.
The Minister conceded the error. Everyone agreed the Tribunal got it wrong.
The only question was: so what?
Because here was the awkward reality. Even if the Tribunal had assessed "compelling reasons" at the correct time, Mr Hossain still had that unpaid Commonwealth debt. PIC 4004 was independently not satisfied. The visa had to be refused regardless.
The error on the timing criterion could not have changed the outcome. The question was whether that mattered.
The Mess in the Courts Below
Federal Circuit Court: Judge Street Says Yes
The Appellant applied to the Federal Circuit Court of Australia (Hossain v Minister for Immigration and Border Protection [2016] FCCA 1729). By this stage, he had actually paid his debt to the Commonwealth. Judge Street found that the Tribunal had committed a jurisdictional error on the timing criterion, quashed the decision, and sent it back — exercising the Court's discretion in Mr Hossain's favour, noting that the debt had now been repaid.
Under the old rules, this made perfect sense. Error of law? Tick. Jurisdictional error under the Craig framework? Tick. Discretion? Exercised in favour of the applicant, because the practical obstacle (the debt) no longer existed.
Full Federal Court: Three Judges, Three Views
The Minister appealed to the Full Court of the Federal Court (Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82; (2017) 252 FCR 31). Three judges sat. Three different views emerged.
Flick and Farrell JJ (the majority) agreed with Judge Street that the Tribunal's error was jurisdictional. But they said the Tribunal had "retained jurisdiction" to determine the separate PIC 4004 issue. Because Mr Hossain had not satisfied PIC 4004, section 65(1)(b) of the Migration Act mandated refusal — the Tribunal had no choice but to refuse the visa regardless of the timing error. So, the Tribunal's decision should be restored.
This reasoning was, to put it politely, awkward. If a decision is affected by jurisdictional error, the decision is — under orthodox principles — a nullity. It is no decision at all. You cannot have a decision that is simultaneously void for jurisdictional error and valid because the Tribunal "retained jurisdiction" on a separate question. The High Court would later describe this reasoning as conflating two concepts that are actually the same thing.
Mortimer J (dissenting) took a different approach. Her Honour agreed the error was jurisdictional. But she took the orthodox next step: having found a jurisdictional error, the Court should exercise its discretion whether to grant relief. And in exercising that discretion, her Honour noted that Mr Hossain had now paid his debt, the compelling reasons criterion and PIC 4004 were not truly independent of each other (because compelling reasons might have led the Tribunal to give Mr Hossain more time to pay), and relief should be granted.
Mortimer J's approach was doctrinally clean. It separated the question of error from the question of remedy. But it was generous to applicants, because once you find a jurisdictional error, the discretion to refuse relief is exercised sparingly.
The Appellant appealed to the High Court.
The High Court Rewrites the Rules on Judicial Review
On 15 August 2018, the High Court delivered judgment in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123. All five justices — Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ — dismissed the Appellant’s appeal.
But they did so in a way that nobody below had anticipated. They did not tinker with the discretion to grant relief. They did not adopt the majority's "retained jurisdiction" reasoning. They did not even follow Mortimer J's orthodox approach.
Instead, they went back to the beginning and said: the error was never jurisdictional in the first place.
The Plurality: Kiefel CJ, Gageler and Keane JJ
The plurality delivered the key reasoning at paragraphs [29]–[31]. Their Honours held that whether a decision involves a failure to comply with a statutory condition grave enough to constitute jurisdictional error depends on the construction of the statute. Decision-makers must proceed on correct legal principles — that is an implied condition of their authority. But there is ordinarily also a threshold of materiality.
That threshold, their Honours said, would not ordinarily be met if complying with the condition could have made no difference to the decision that was made. Unless the error could realistically have resulted in a different decision, the breach is not material — and if it is not material, it is not jurisdictional error.
Applied to Mr Hossain's case: the Tribunal's timing error could not have changed the outcome, because PIC 4004 was independently unsatisfied. The error was not material. Therefore, it was not jurisdictional. Therefore, Mr Hossain was not entitled to relief — not because of discretion, not because of "retained jurisdiction," but because the error simply never crossed the threshold.
Edelman J: The Academic Treatment
Justice Edelman (which we thought is worth noting – the youngest appointed High Court Justice in the history of Australia) arrived at the same result but through a more scholarly route (from [46] onwards). His Honour traced the concept of materiality through the High Court's earlier decisions — Craig, Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, Kirk v Industrial Court (NSW) (2010) 239 CLR 531 — and argued that a requirement of materiality had always been implicit in the concept of jurisdictional error. An error would not usually be material unless there was a possibility it could have changed the result (at [72]).
Importantly, Edelman J also noted that materiality does not take place in "a universe of hypothetical facts" (at [78]). You assess whether the error mattered against the facts as they actually were before the Tribunal — not some imagined scenario where things might have gone differently. Mr Hossain's argument that, absent the timing error, he might have had time to pay his debt, was exactly the kind of hypothetical speculation the materiality inquiry rejects.
Nettle J: The Cautious Concurrence
Justice Nettle agreed with Edelman J (at [39]) but added a significant qualification (at [40]). His Honour accepted materiality as the "general" rule but identified circumstances where an error might still be jurisdictional even if it did not deprive the applicant of the possibility of a different outcome. Some errors are so fundamental — particularly extreme breaches of procedural fairness — that they exceed jurisdictional limits regardless of whether the result might have been the same.
This was an important safety valve. It meant that the materiality threshold was not absolute. There would still be cases where the nature of the error, rather than its effect on the outcome, would be enough.
What the Materiality Threshold Actually Means
So what does all this mean in plain language?
Before Hossain, if the Tribunal made a legal error, it was almost certainly jurisdictional. The court would set the decision aside and send it back.
After Hossain, the court asks an additional question: could the error realistically have made a difference?
The word "realistically" is doing heavy lifting in that sentence. The standard is not the balance of probabilities — the applicant does not need to prove it was more likely than not that the result would have been different. But it is also not a merely theoretical possibility — the applicant cannot just wave their hands and say "well, who knows what might have happened."
“Important Test: Could the Jurisdictional error realistically have made a difference?”
The standard sits somewhere in between. There must be a realistic possibility that compliance with the legal requirement could have produced a different decision. If there is not — if the decision was going to come out the same way regardless of the error — then the error is not jurisdictional, and the court will not intervene.
For someone who has just had their visa refused and believes the Department or Tribunal got the law wrong, this is a significant hurdle. It is no longer enough to find a legal error. You also have to show that the error mattered. And the burden of establishing that realistic possibility falls on you, the applicant.
Why This Matters for You
If you are reading this because you have received an adverse visa decision and you are wondering whether a court appeal can help you, the materiality threshold is probably the single most important concept you need to understand.
It does not mean judicial review is impossible. It does not mean the courts have closed their doors. But it does mean that finding a legal error is only half the battle. Your lawyer also needs to show — from the outset — that the error could realistically have led to a different result.
That is why it is so important to get proper legal advice early, from someone who understands not just what errors look like, but which errors will actually make a difference in court.
Coming Up Next
In Part 3, we will look at how the materiality threshold expanded after Hossain. In 2019, the High Court in SZMTA applied it to breaches of procedural fairness — and in 2021, MZAPC took it further still. The threshold was no longer limited to errors of law; it was becoming the organising principle of jurisdictional error across the board.
In Part 4, we will look at real cases where experienced lawyers and barristers thought they had a strong judicial review case — and were defeated by the materiality threshold. Not basic examples, but sophisticated, nuanced cases that show just how robust this barrier has become.
In this series:
Part 2 (you are here): The 2018 Case That Changed Everything: How the High Court Raised the Bar for Judicial Review
Part 3 (coming soon): It's Not Enough to Prove They Got It Wrong: How the Materiality Threshold Expanded Beyond Errors of Law
Part 4 (coming soon): Why Even Strong Cases Fail: The Materiality Threshold in Practice
Related:
How Can Agape Henry Crux Help
If any of the following situations apply to you, we can advise you on whether judicial review may be an option:
Your visa was refused, and the refusal letter says it is not merit reviewable
Your visa was cancelled, and the cancellation notice says it is not merit reviewable
You missed the deadline to lodge with the ART
The Minister made the decision personally (s 501, s 501A, s 501BA)
The Department or Tribunal made a clear legal error, and you want it corrected without waiting years for merits review
You went through the Tribunal and lost, and you believe the Tribunal made a legal error
At Agape Henry Crux, our Accredited Specialists in Immigration Law regularly handle judicial review cases. You can schedule an appointment with one of our lawyers, Jason Ling or Angela De Silva, to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English and Mandarin. We can also help you arrange an interpreter if this isn't your language.
Our founder and principal lawyer, Jason Ling, has been recognised in the 2026 edition of The Best Lawyers in Australia™. Agape Henry Crux is named as Best Immigration Law Firm 2025 - Sydney by APAC Insider Awards.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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