Enquiry Form

Level 7, 530 Little Collins Street

Melbourne, VIC, Australia

Level 3, 21 Taepyung-Ro

Jung-Gu, Daegu, South Korea​​

©2019 by Visaplan.com.au. All Rights Reserved

James Bae - Solicitor

Andrew Topalovic - Solicitor

Fernando Seo - Lawyer Consultant, Korea

Jang Eun Lee - Lawyer Consultant, Korea

  • Visa Plan Australia

Establishing jurisdictional error

Updated: Feb 4

Singh v Minister for Home Affairs [2019] FCA 1670 (11 October 2019)

The Court ordered that:

  • Leave for appeal be granted to the applicant to rely on the amended grounds of application.

  • The application for review be allowed and the decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal to be heard and determined according to law.

  • The first respondent to pay the applicant’s costs of the application.

Has jurisdictional error been established?

53. Jurisdictional error can be established if a decision is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [102] per Justices Crennan and Bell, citing Justices Gummow and Hayne in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37] – [38]. The relevant principles are set out in SZMDS at [130] – [131] and [135] per Justices Crennan and Bell (emphasis added):

  • In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

  • What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

  • On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims.There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

54. In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) the Full Court, per Justices Griffiths, Perry and Bromwich further described the relevant principles in relation to establishing jurisdictional error on the basis of illogical or irrational findings of fact, at [47]:

  • Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [148] per Justice Robertson; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 at [84] per Justice McKerracher (with whom Justice Reeves agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Justice Wigney). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Justice Robertson emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Justice Beech-Jones in BKE v Office of Children's Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

58. Before characterising the illogical or irrational reasoning, or conclusion, as an error going to the jurisdiction of the decision-maker, it is necessary for the Court to be satisfied that the illogical or irrational reasoning was “material” to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome: CGA15 at [59] (citing Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30]- [31] per Chief Justice Kiefel, Justices Gageler and Keane and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [2], [3], [48] and [49]). The appellant has the onus to show that the error is material: CGA15 at [59] (citing SZMTA at [4] and [41]). Further, an irrational or illogical finding of fact will not generally give rise to jurisdictional error if that finding was immaterial, or not critical, to the ultimate conclusion or end result: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 at [41(d)].