jurisdictional error

Jurisdictional and non-jurisdictional error in inferior courts

See Craig v The State of South Australia (1995) 184 CLR 163 esp at 179-180:

[T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

See also discussion in SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 in the context of applications under s 39B of the Judiciary Act in relation to a Federal Circuit Court judge’s refusal to extend time under s 477 of the Migration Act.

Attacking findings of adverse credibility

The Minister’s common retort that making findings as to credibility is a task of the tribunal ‘par excellence’ is often abused. That tautology does not mean that credibility findings cannot be challenged in judicial review. Criticism of the abuse of ‘par excellence’ was made in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]:

Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):

67 In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

68 But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:

“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.”

The prosecutor argued at the hearing that s 430(1)(c) “feeds into the ascertainment of the Minister’s satisfaction” and that it is “an integral part of ascertaining the jurisdictional fact”.

(emphasis added)

It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.

There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

(a) failure to afford procedural fairness;

(b) reaching a finding without any logical or probative basis;

(d) jurisdictional error as discussed by Flick J in SZVAP.

Discounting evidence due to ‘conflicting evidence’ or ‘doubt’

In Re Minister of Immigration, Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon [1990] FCA 144 the Court said:

it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence.

Injunctions or court orders made without authority compared to administrative decisions affected by jurisdictional error

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid. The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21] Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22] Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

The proposition that an administrative decision affected by jurisdictional error is ‘no decision at all’ is famously articulated by Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33]. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt. For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act. If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction. The injunction must first be set aside. It follows that disobeyance of the injunction may be a contempt of Court.