High Court further explains "jurisdictional error" - a concept critical in many refugee cases Date: 12 June 2003 High Court further explains "jurisdictional error" - a concept critical in many refugee cases.

In a protection visa case, the High Court has further explained the difficult concept of "jurisdictional error" by a tribunal whereby relief pursuant to sec 75(v) of the Constitution may be attracted.

The case was Dranichnikov v MIMA [2003] HCA 26. There, the unsuccessful applicant for a protection visa (the applicant for prerogative relief) was the general manager of a company that provided real estate and legal services in respect of property transactions in Vladivostok, Russia. The Refugee Review Tribunal had refused his application for a visa. He believed that the Tribunal had wrongly thought that the relevant social group to be considered, for the purpose of deciding whether he had a well-founded fear of persecution by reason of membership of such a group, was businessmen in Russia, whereas his case was that he was a member of a more limited group consisting of businessmen who publicly criticised Russian law enforcement authorities for failing to take action against crime or criminals. The High Court agreed. The tribunal had therefore failed to consider the question whether he was a member of that more limited social group. The Tribunal's failure to deal with that question, an important aspect of the applicant's case and being one of a number of questions which the tribunal was required to answer in performing its statutory task, was, held the High Court, to be characterised as a constructive failure to exercise jurisdiction. On that basis the High Court could grant relief under sec 75(v) of the Constitution.

Kirby J said that, in order to demonstrate jurisdictional error, it is necessary to establish "something more than an error of law within jurisdiction. Difficult as it may sometimes be to differentiate jurisdictional and non-jurisdictional error with exactitude..., in a case where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it. Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decisio n in question in a fundamental way."

As to the fact that relief under sec 75(v) of the Constitution is, like prerogative relief generally, discretionary Gummow and Callinan JJ said: "One often compelling discretionary bar is the availability of other relief. Whilst it may be arguable that Mr Dranichnikov might have been entitled to relief under s 476(1)(e) of the (Migration) Act (briefly, for error of law), the uncertainty of such an outcome, the repeal of s 476 as it then was, and the fact that before he could in any event pursue his arguments in respect of the decision of the Full Court of the Federal Court he would need special leave, mean that there is no relevant discretionary bar to constitutional relief here."

In particular the Court ordered mandamus to issue to compel the tribunal to review the delegate's decision according to law.