Judicial Review
Jurisdictional Error
Jurisdictional error is the threshold a court applies before it will set aside a migration decision. Where the decision-maker fell into jurisdictional error, the decision is invalid in law. Where no error occurred, the decision stands, however harsh or unfair it may appear.
The leading authorities
Jurisdictional error is a legal concept developed by the High Court. The doctrine emerged in Craig v South Australia (1995) 184 CLR 163, was confirmed in the migration context by Kirk v Industrial Court of NSW (2010) 239 CLR 531, and was refined materially by Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506.
Craig identified the categories of jurisdictional error that have come to dominate migration practice. Kirk confirmed that statutes cannot exclude judicial review for jurisdictional error from State Supreme Courts and, in subsequent application, the federal courts. Hossain and MZAPC introduced and developed the materiality requirement: an error is jurisdictional only if it could realistically have made a difference to the outcome.
Categories of jurisdictional error
The categories overlap. A given factual scenario can engage more than one at once. The categories below are the recurring grounds in migration judicial review.
Procedural fairness
Failure to put adverse information to the applicant for comment, denial of an interpreter or inadequate interpretation, undisclosed material driving credibility findings, or apprehended bias. The Migration Act's procedural codes are often exhaustive of common law procedural fairness — but only where the codes apply.
Misidentification of the issue
Asking the wrong question, applying the wrong statutory test (for example under Section 501 or a public interest criterion), or mischaracterising the case the applicant put forward. Statutory misconstruction is often the strongest pleading where the underlying evidence was favourable.
Failure to consider relevant material
Ignoring evidence that addressed a substantial element of the case the Tribunal had to decide. The failure must be material — where the failure is established but the court is not persuaded the result would have been different, materiality defeats the application.
Acting without evidence
Making findings of fact for which there was no probative evidence before the decision-maker. Distinct from the merits question of whether the available evidence was sufficient — this is the question of whether there was any evidence at all.
The materiality threshold
Following Hossain and MZAPC, an error is jurisdictional only where it was material to the decision. The applicant must establish a realistic possibility that the outcome would have been different had the error not been made. The standard is not certainty — it is realistic possibility — but it is real, and the applicant carries the onus.
Materiality is now the most contested aspect of modern migration judicial review. Many otherwise-arguable errors fail because the court is not persuaded that the error mattered to the outcome. Common materiality challenges include cases where the error related to a peripheral finding rather than a central one; where the decision-maker also relied on independent grounds that would have produced the same outcome; and where the disputed evidence, even taken at its highest, would not have changed the result.
The pleading is the case
Generic pleadings of "unreasonableness" or "failure to properly consider" are routinely struck out. Visa Plan Lawyers drafts pleadings that survive summary dismissal, with each alleged error tested for materiality before it goes into the document.
Jurisdictional error information is sourced from the Migration Act 1958 (sections 476, 476A, 477, 477A) and leading High Court authorities including Craig v South Australia (1995) 184 CLR 163, Kirk v Industrial Court of NSW (2010) 239 CLR 531, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, and MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, current as at April 2026. This page provides general information only and does not constitute legal advice.