Hossain distinguished?

Federal Court (Full Court): 'the decision in Hossain did not state a general principle of statutory construction to the effect that there is an implied obligation that all powers conferred on administrative decision-makers are to be exercised on a correct understanding and application of the applicable law such that a material breach of that obligation would be jurisdictional'. However, with respect, a closer look at Hossain reveals that...

Tsvetnenko v United States of America [2019] FCAFC 74

Court: Federal Court of Australia (Full Court)

Appellant: EUGENI TSVETNENKO

Respondents: United States of America; GIUSEPPE MIGNACCA-RANDAZZO

Judgement (for the respondents): BESANKO, BANKS-SMITH AND COLVIN JJ

Summary and discussion

Although this decision arose in the context of extradition, rather than immigration, law, it raised an important legal concept, namely the materiality test expounded by the High Court in Hossain, where Kiefel CJ, Gageler and Keane JJ had cited Wei v Minister for Immigration and Border Protection with approval at [31] as follows:

"[J]urisdictional error... consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by [an] Act"...

Their Honours further held as follows at [34] in Hossain (emphasis added):

Formation of the Minister's state of satisfaction or of non-satisfaction is in each case conditioned by a requirement that the Minister or his or her delegate, or the Tribunal forming its own conclusion on review, must proceed reasonably and on a correct understanding and application of the applicable law, which includes the criteria prescribed by the Migration Act and the Migration Regulations for the visa in question.

In Tsvetnenko, the Full Court of the Federal Court distinguished Hossain by holding as follows ...

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