Case: Cockrell v Minister for Immigration &amp; Citizenship [2008] FCAFC 160
Outcome: applied
Although the decision of the Tribunal was not susceptible of appeal, original jurisdiction is conferred on this Court by s 476A(1)(b) and (2) to review the Tribunal's decision. The jurisdiction conferred is the same as that of the High Court of Australia under s 75(v) of the Constitution . In order to obtain relief in this Court's original jurisdiction, the Applicant must demonstrate jurisdictional error: Cockrell v Minister for Immigration &amp; Citizenship [2008] FCAFC 160 at [4] . The Minister did not deny that a failure to consider a relevant consideration could amount to jurisdictional error (eg, Aporo v Minister for Immigration &amp; Citizenship [2008] FCA 102 ; see also: Green v Minister for Immigration &amp; Citizenship [2008] FCA 125 at [21] [29], [2008] FCA 125 ; 100 ALD 346) ; nor was any submission advanced that a failure to comply with s 43(2B) of the 1975 Act may not constitute jurisdictional error. The submission which was advanced on behalf of the Minister was that the Tribunal had committed no error, be it jurisdictional or otherwise. 41 Even if there had been a failure on the part of the Tribunal to consider the hardship which the decision would have upon him, such a failure would not have amounted to a failure to consider a matter which the Tribunal was " bound " to take into account, and any such failure would not have amounted to jurisdictional error. A comparable argument was advanced and rejected in Cockrell v Minister for Immigration &amp; Citizenship [2008] FCAFC 160. The trial judge had there rejected the argument as follows: [53] I do not think the Tribunal member was bound to consider hardship to the applicant himself. It is possible that in any event he did so when considering the best interests of [the Applicant's son], but even if he did not, he did not err in law in not doing so. ...: Cockrell v Minister for Immigration and Citizenship [2007] FCA 1779 , 100 ALD 52. An appeal was dismissed. Gray, Finn and Mansfield JJ relevantly concluded: [31] Counsel for the appellant did not refer the Court to any other document, or transcript of evidence, in which any evidence or submission of hardship to the appellant was put before the Tribunal. Any evidence and submissions in support of the proposition that the appellant would suffer hardship is therefore vague, and is usually found in the context of assertions of hardship to others, particularly [his son]. It is difficult to see how the Tribunal could come to the conclusion that hardship to the appellant was a relevant factor, appropriate for it to take into account under cl 2.17 of Direction No 21. The specific mention in cl 2.17(c) of hardship to immediate family members lawfully resident in Australia tends to make it doubtful that hardship to the person cancellation of whose visa is being considered would be regarded as a relevant matter, at least in most cases. It must be assumed that the cancellation of a visa of a person who opposes that cancellation would cause that person hardship in any event. Unless a case of specific hardship were put before the decision-maker, it can hardly be expected that the decision-maker would take into account such a general consideration. To the extent to which hardship to the appellant by separation from [his son] is implicit in the cancellation of the appellant's visa, it is important that Direction No 21 only makes specific reference (in the circumstances of this case) to hardship to [his son]. It is at least implicit in the Tribunal's finding that the prospects of the appellant and [his son] developing a close relationship were doubtful that the Tribunal's view was that the appellant's removal to the United States would make no significant difference to his relationship with [his son], and therefore to any detriment he suffered from the absence of a such a relationship.