Case: Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323
Outcome: applied
I propose to consider in turn each of the five grounds raised by the applicant in his draft notice of appeal as well as the further ground raised at the hearing. In doing so, however, I note that the grounds of review raised by the applicant, while broad ranging, are only relevant in these proceedings in so far as they present the possibility of jurisdictional error on the part of the Tribunal in reaching its decision. A review of the factual findings of the Tribunal, or the weighing of facts by the Tribunal, has no place in such a review. As explained by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 351. It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia [1995] HCA 58 ; [(1995) 184 CLR 163] , 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. (footnotes omitted) 26 Nonetheless, an issue of jurisdictional error potentially arises if the applicant's New Zealand criminal record was an irrelevant consideration but was taken into consideration by the Tribunal in its decision not to exercise its discretion in the applicant's favour (cf Peko-Wallsend [1986] HCA 40 ; 162 CLR 24 , Minister for Immigration and Ethnic Affairs v Guo (1997) 151 CLR 559 at 575, Yusuf [2001] HCA 30 ; 206 CLR 323 at [41] ).