Consent orders are often made in civil commercial litigation if the parties reach an agreement to settle. Generally the Courts will accomodate the wishes of the parties and make orders to reflect the settlement. Usually there are no issues about those types of orders being within the jurisdiction of the court.
The position in administrative law (i.e. migration) litigation is a little bit different. On judicial review applications the issue for the court is whether or not there has been a jurisdictional error either in the ART or on the lower Court. This does not mean that migration matters never settle. It does happen that the Minister concedes and the parties agree that there has been a jurisdictional error made.
High Court
The High Court was recently faced with an application to amend an application to include a new ground of appeal (see Plaintiff M19A/2024 v Minister for Immigration and Multicultural Affairs [2025] HCA 17). The ground was that the decision of the delegate of the Minister under s 116(1AA) of the Migration Act 1958 (Cth) is vitiated by jurisdictional error by reason of the delegate having given weight to the fact that the first appellant did not respond to a “Notice of Intention to Consider Cancellation” of that visa in circumstances where there was no legal obligation on the first appellant to respond to such a notice. In written submissions filed in support of the appeal, the appellants sought leave to raise this new issue on the basis that it could not have been the subject of any additional evidence at first instance and did not involve any “fresh consideration of facts that are neither admitted nor beyond controversy” (Bird v DP (a pseudonym) (2024) 98 ALJR 1349).
In response to the application for leave to raise the new issue, the Minister consented to the making of orders allowing the appeal, setting aside the judgment and substituting orders which include the issue of a writ of certiorari and a declaration. The basis of the Minister’s concession is consistent with the Minister’s concession in an earlier proceeding before a single judge of this Court, where a writ of certiorari was issued: see Lazenby v Minister for Home Affairs (S51/2022) but that no reasons for that earlier decision were published and “only the Minister and not the [a]ppellants were aware of that conceded issue of principle at first instance”.
In these circumstances, and where the issue was not raised by the appellants below because they were not and could not reasonably have been aware of the relevant authority, it is necessary in the interests of justice that the appeal be determined on the basis of the concession as to jurisdictional error by the delegate now properly made by the Minister.
The Court noted that its power to make orders in the exercise of its appellate jurisdiction is to “affirm reverse or modify the judgment appealed from” and to “give such judgment as ought to have been given in the first instance”.The proper exercise of that power in an appeal from a judgment given in the original jurisdiction of the Court under s 75(v) of the Constitution necessitates that the Court on appeal be satisfied that such orders as it makes are appropriate. That is so even if those orders are sought and made by consent.
That constraint on the making of orders by consent in an appeal from a judgment given in the original jurisdiction of the Court under s 75(v) of the Constitution arises because the original jurisdiction exists to ensure that “officers of the Commonwealth obey the law and neither exceed nor neglect any jurisdiction which the law confers on them” and because the law declared and enforced in the exercise of the original jurisdiction is incapable of alteration by agreement.
The Minister’s concession is correct. The decision of the delegate being affected by jurisdictional error, it follows that the consent orders founded on the Minister’s concession are appropriate to be made.
Public interest and older authorities
There is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court. It is necessary for this to occur because it is not a matter for the parties to determine by agreement whether the extent of executive authority has been exceeded. Constitutional integrity requires that the limits upon the extent of judicial power to confine or constrain the exercise of executive power are carefully observed.
The Court must itself be satisfied of the alleged jurisdictional error and the appropriateness of exercising its jurisdiction to grant the relief sought: Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557; 100 FCR 323 at [11]-[12] per French J, approved in Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33; 174 FCR 574 at [13]-[15] per Downes, Greenwood and Tracey JJ. This is so even if the proper contradictor to an application for judicial review consents to that relief: VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921; 181 ALD 49 at [3] per Colvin J
Creative commons acknowledgement for the photograph.