The grounds of review - jurisdictional error?
15 If any consideration as to the constraints imposed by the majority decision in Huynh be presently left to one side, it may be accepted that each of the grounds of review relied upon in the Amended Application could - if made out - establish jurisdictional error. Although it is unnecessary to canvas the principles to be applied in any great detail, the basic principles underlying Mr King's case should be briefly set forth.
16 The need to establish jurisdictional error arises by reason of s 476A(2) of the Migration Act which relevantly confines the jurisdiction of this Court presently being exercised to "the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution".
17 Those errors which may go to an administrative decision-maker exceeding the jurisdiction conferred have not been exhaustively defined. But some indication as to the breadth of those errors which may constitute jurisdictional error were explored in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323. Gaudron J there addressed the issue as follows:
[41] For the purposes of mandamus and prohibition, a Tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be "an actual failure to exercise jurisdiction". On the other hand, there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.
McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) addressed the issue as follows:
[82] 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) 184 CLR 163 at 179], 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.
18 As to the first ground of review, necessary caution must be exercised whenever an applicant seeks to maintain a submission that "proper, genuine and realistic consideration" has not be given to a particular case. That phrase, it has been repeatedly recognised, potentially conceals an impermissible challenge to the merits of a decision rather than a challenge to whether the decision has been made in accordance with law: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65], (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ; Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337 at [56], (2008) 251 ALR 633 at 650 to 651 per Tobias JA (Spigelman CJ agreeing).
19 The merits of an administrative decision are generally left to the decision-maker; but whether a decision-maker has made a decision in accordance with law is properly the task of the Court to resolve. Subject to a proper identification of those considerations which must be taken into account, a failure to take relevant considerations into account may establish jurisdictional error: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [69] to [71] (citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2013) 206 CLR 323); Aporo v Minister for Immigration & Citizenship [2008] FCA 102 at [31]; Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [27], (2010) 115 ALD 303 at 309; SZMWQ v Minister for Immigration and Citizenship [2010] FCAFC 97 at [114],(2010) 187 FCR 109 at 140.
20 The second ground of review is, with respect, but a different way in which to express the proposition that an administrative decision-maker fails to exercise a statutory discretion in accordance with law if a relevant consideration is not properly taken into account or if a rule of policy is applied without regard to the merits of the individual case.
21 The third ground of review asserts an impermissible application of a rule of policy at the expense of a proper consideration of the merits of Mr King's case.
22 Those entrusted with a statutory discretion, it may be accepted, are to exercise that discretion by reference to those considerations which are either expressly set out in the statute itself or those considerations which may be necessarily implied: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. In exercising such a discretion, there is no impediment to a general policy being applied, provided the policy is consistent with the statute itself and provided that the policy is not applied to the exclusion of a proper consideration of the merits of the individual case: Elias v Commissioner of Taxation [2002] FCA 845, (2002) 123 FCR 499. Hely J there relevantly observed at 506 to 507:
[34] The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will "normally" be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case…
See also: Cummeragunga Pty Ltd (In Liq) v Aboriginal and Torres Strait Islander Commission [2004] FCA 1098 at [156], (2004) 139 FCR 73 at 92 per Jacobson J; Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [224] per Buss JA (Wheeler and Pullin JJ agreeing). Many examples can be provided in which an applicant has argued that an exercise of discretion has miscarried by reason of a decision-maker inflexibly applying a policy at the expense of the merits of an individual case. Thus, but one example is provided by the decision in Gough v Southern Queensland Regional Parole Board [2008] QSC 222 where judicial review was successfully sought in respect to a decision of the Respondent Parole Board. Mr Gough had been sentenced to four and a half years imprisonment for sexual offences. He successfully argued that the Board had inflexibly applied a policy to refuse parole where a prisoner had not completed recommended programs. In so concluding, Applegarth J said:
[71] The reasons for decision of a body such as the Board should not be overzealously scrutinised in a search for error. However, in circumstances in which the Board's decision turned upon what were said to be outstanding intervention needs and the contention that the applicant's relapse prevention plan did not adequately address the Board's concerns, it is significant that the Board apparently did not consider why the applicant had been unable to complete the programs that it recommended. The Board stated that it was "not convinced" that the applicant had sufficiently responded to its major concerns and it considered that the applicant did not provide it with "an adequate relapse prevention plan". The reasons for these conclusions are sparse, to say the least. The Board did not address in its statement of reasons the content of the applicant's relapse prevention plan, or address in any detail the matters in it and in the applicant's submission that were in his favour.
[72] When regard is had to the reasons as a whole, and without subjecting them to excessive and unfair textual analysis, their substance is that the Board refused to find that the applicant was an acceptable risk to the community if released to parole because it required the additional assurance that would be forthcoming if the applicant underwent the recommended programs. It reached this conclusion apparently without having any regard as to why the applicant had yet to complete those programs, and that their completion presumably may have enhanced the quality of the applicant's relapse prevention plan. The Board did not address whether its concerns and doubts that the application "may not be an acceptable risk" could be met by imposing a condition of parole that the applicant undertake the recommended programs in the community.
The inflexible application of a policy by a decision-maker may constitute jurisdictional error: Jackson v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 203 at [20], (2003) 75 ALD 643 at 647 to 648 per Lee, Carr and Moore JJ.
23 The manner in which the grounds of review are expressed, and the degree of overlap between each of these grounds, are echoed in the following observations of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, (2010) 243 CLR 164 at 174 to 175:
[26] In Khan v Minister for Immigration and Ethnic Affairs [(1987) 14 ALD 291], Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister's delegate was required to "give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy."
Their Honours thereafter contrasted the scope of judicial review permitted by ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) with the more confined scope of judicial review permitted under Part 8 of the Migration Act (as amended from time to time) and cited with approval ([2010] HCA 48 at [30], (2010) 243 CLR 164 at 175 to 176) the observations of Basten JA (with whom Allsop P agreed) in Swift v SAS Trustee Corporation [2010] NSWCA 182 as follows:
[45] The language of "proper, genuine and realistic consideration" was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was "the merits of the case". Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review….
Basten JA went on to observe:
[45] …If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, "to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice"…
See also: SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 at [24] per Siopis, Perram and Davies JJ. It was presumably with regard to both the observations of Gummow J in Khan v Minister for Immigration and Ethic Affairs (1987) 14 ALD 291, and those of Basten JA in Swift, supra, that the draftsman of the present Amended Application drafted grounds 2 and 3.
24 It should, perhaps, be further noted that in placing reliance upon the observations of Buchanan J in NBNB that Nystrom was not to "be read as approval of any general proposition that the minister need pay no attention to the consequences of a decision to cancel a visa", Senior Counsel for Mr King referred to the fact that in NBNB, Buchanan J extracted the above observations of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in SZJSS and continued:
[124] In Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713, Gummow J emphasised the necessity to avoid "perfunctory and cursory" consideration of the merits of an application requiring a decision under the Act. It was relevant to his Honour's analysis in that case that:
… in a serious respect, the merits may not properly have been understood when they were evaluated in the light of policy.
[125] Notwithstanding the decisions to which the Minister referred in the supplementary written submissions, it is necessary in my respectful view for there to be proper attention to the legal and practical merits of an application when any relevant policy considerations are brought to bear.
[126] A central defect in the present case (as in NBMZ) is that the Minister failed to pay regard to some critical legal consequences of his decisions. Those consequences, in my view, may not be ignored or put aside as ones which did not need to be understood and taken into account.
Such comments only further reinforce the need, in an appropriate case, for a Full Court to consider the correctness of the decision in Huynh. But, for present purposes, it is sufficient to apply each of the grounds of review to the reasoning process of the Minister set forth in his statement of reasons.