It is not the case that a failure to take into account evidence cannot amount to jurisdictional error. The Minister had often previously submitted that only a failure to consider a claim could amount to jurisdictional error, and that a ‘mere failure to deal with evidence’ could not.
In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, the Full Federal Court said at [64]:
The minister’s contention that any error was of a factual nature, not going to jurisdiction, was developed in large part by reference to a line of cases said to support a distinction between a “relevant consideration” or claim and a “mere failure to deal with evidence”. We are not persuaded the line is as bright, or the distinction as encompassing, as the minister submits.
Later, at [70] their Honours said:
With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.
Similar comments were made in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 [54].
See also What the AAT must do to actually ‘consider’ a claim.