Hwang and Fu v Commonwealth of Australia & Anor

The applicants, Hwang and Fu, sought judicial review of decisions made by the Commonwealth of Australia and the Minister for Immigration and Multicultural Affairs. The dispute concerned the validity of decisions to refuse to grant them visas, which the applicants alleged were vitiated by jurisdictional error. The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the decisions to refuse the visa applications were affected by jurisdictional error, specifically in circumstances where the decision-maker failed to consider relevant considerations and took into account irrelevant considerations. The applicants contended that this failure amounted to a breach of the duty to exercise their statutory power according to law.

McHugh J, in his reasons, focused on the nature of jurisdictional error in administrative law. His Honour affirmed that a failure to take relevant considerations into account, or the taking of irrelevant considerations into account, can constitute a jurisdictional error if it means the decision-maker has failed to exercise the power conferred by the statute. This occurs when the error is so fundamental that it means the decision-maker has not, in substance, exercised the power granted to them. The judge emphasised that the scope of the statutory power must be identified, and then it must be determined whether the decision-maker acted within those bounds. If the decision-maker fails to consider a mandatory consideration or considers an irrelevant one, and this failure is of a nature that means the decision-maker has not truly exercised the power conferred by the statute, then jurisdictional error will be established.

The application for judicial review was dismissed.