Since the decision of the High Court on 4 February in Plaintiff S157, jurisdictional error has re-emerged as a ground for judicial review of RRT decisions. The High Court in Plaintiff S157 v MIMIA [2003] HCA 2 (4 Feb 2003) held that a decision affected by jurisdictional error is not a decision under the Act and is therefore not protected from review by the privative clause, s. 474.
This note gives a brief summary of the concept of jurisdictional error. Please note, this summary is intended to be a guide to the cases only, and does not purport to be a substitute for reading the cases, particularly for the purposes of written submissions or the giving of legal advice.
A District Court stayed the prosecution of the appellant and the respondent sought certiorari to quash the decision. The Full Court of the Supreme Court (of South Australia) quashed the stay order, on the ground that the judge had committed a jurisdictional error as a result of misunderstanding the majority reasoning in Deitrich v The Queen[2]. The High Court considered the issue of whether the judge had committed jurisdictional error (or whether there was an error on the face of the record).
The High Court (comprising Brennan, Deane, Toohey, Gaudron and McHugh JJ) delivered a unanimous judgment holding that there was neither jurisdictional error nor error on the face of the record by the District Court and no grounds existed for the granting of certiorari.
By applying the doctrine of jurisdictional error to inferior courts (compared with tribunals) the High Court stated that jurisdictional error occurs if:
“…it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist (… infect(ing) either a positive act or a refusal or failure to act.).”[3]
The High Court explained that jurisdictional error occurs most obviously where an inferior court purports to act wholly or partly beyond the general area of its jurisdiction.[4] The court also identified less obvious situations where jurisdictional error can occur, namely if an inferior court:
The High Court distinguished the well-known principle enunciated in the case of Anisminic Ltd v Foreign Compensation Commission[7] by limiting its application to tribunals. Therefore, whilst error of law on the face of the record remains a ground of review available in relation to inferior courts, it is effectively obsolete as a ground of review of tribunals.
In MIMIA v Yusuf (2001) 206 CLR 323; [2001] HCA 30, the High Court further explained the notion of jurisdictional error.
Fathia Mohammed Yusuf was a Somalian national who claimed protection on the basis of race and membership of a particular social group. She belonged to the 'Abaskul' clan and in support of her protection visa application made reference to three incidents involving attacks by the 'Hawiye' clan upon her house and family. The RRT accepted that the applicant has been harassed by members of the opposing clan on two occasions but held that they were isolated incidents in the context of the civil war which commenced in 1991.
The RRT did not refer to the first of these three incidents.
The Federal Court at first instance (per Finn J) found that the failure of the RRT to refer to the first of the three incidents - a material question of fact on which a finding needed to be made amounted to an error of law under the then section 430(1)(c) of the Act.[8] His Honour referred to Thevendram v Minister for Immigration [1999] FCA 182 as authority for the proposition that a failure to satisfy ss 430 (c) and (d) of the Act was a procedural error reviewable under s 476(1)(a) of the Act.[9]
The Minister appealed to the Full Court (Heerey, Merkel and Goldberg JJ). He argued that Finn J had erred in holding that the first incident was a material question of fact on which a finding was to be made and that failure to comply with section 430 was a procedure.
In dismissing the Minister's appeal the Full Court followed a line of authority to the effect that failure to comply with section 430 is a failure to observe procedures, and is a reviewable error under s 476(1)(a) of the Act as it then stood.
The Minister appealed to the High Court, submitting that as section 430 did not prescribe procedures, failure to follow procedure could not be an error of law.
The High Court considered what would amount to jurisdictional error and stated that:
"As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) "falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
`Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.
Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.
Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."
(per McHugh, Gummow and Hayne JJ )
The court concluded that, it was “…important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act".
Notwithstanding that this is pre October 2001 case, it has been quoted with approval in Boakye-Danquah vMIMIA (2002) FCA 438 (11 April 2002).(per Wilcox J) and other recent cases.
[1] (1995) 184 CLR 163
[2] (1992) 177 CLR, a case which considered the whether an accused could receive a fair trial unless properly represented by counsel.
[3] opt cit 2 at 177
[4] For example, if it hear and determined a criminal charge where its jurisdiction was limited to civil matters.
[5] For example, if it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court’s own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has either not occurred or the requirement not actually satisfied, even though the matter itself is the type or kind of matter which the court has jurisdiction to entertain.
[6] In this situation, the High Court noted that the line between jurisdictional error and mere error in the exercise of jurisdiction may be especially difficult to identify.
[7] [1969] 2 AC 147: Note: it was in obiter in Craig v South Australia that the High Court held that the Anisminic doctrine applies to tribunals and as a result a tribunal makes a jurisdictional error if it makes an error of law be identifying a wrong issue, asking itself the wrong questions, ignoring relevant material, relying on irrelevant material or at least in some circumstances, making an erroneous finding or reach a mistaken conclusion. Note, however, that the application of this interpretation is affected by private clauses.
[8] Section 430 of the Act as it was then imposed a statutory duty on the RRT to prepare a written statement setting out the decision (s430(1)(a); the reasons for the decision (s430(1)(b); findings on any material questions of fact (s430(1)(c); and required the Tribunal to refer to the evidence or any other material on which the finding of fact were based (s430(1)(d))
[9] In Thevendram v MIMIA [1999] FCA 182 (9 March 1999) (Spender, North and Merkel JJ) the Full Court of the Federal Court observed that:
"... the inquisitorial and non-adversarial function of the RRT and the combined effect of the provisions governing the exercise of its inquisitorial powers (ss 414(1), 420, 425, 426, 427, 428 and 430) are such that the RRT is required to determine the merits of the case and in doing so each of the material issues raised by the material and evidence before it. That duty, in our view, is a fundamental which are central to the case raised on the material and evidence before it: see also Calado v MIMIA( Moore, Mansfield and Emmett JJ, 2 December 1998) at 21-22; Buljeta v MIMIA( Katz J, 4 December 1998) at 13-14; and Logenthiran at 13 per Wilcox and Lindgren JJ and 1-2 per Merkel J. The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to a ll of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence." See also: Sellamuthu v MIMA [1999] FCA 247 (19 March 1999)