Jurisdictional Error in Immigration Cases

This assignment analyzes the concept of jurisdictional error within the context of Australian immigration law. It examines the case of *Singh v Minister for Immigration & Anor [2017] FCCA 1901*, where the Federal Circuit Court found that the Tribunal's decision constituted a jurisdictional error due to its failure to consider relevant factors and adopt an unreasonable approach to interpretation. The assignment delves into legal principles established in cases like *Kirk v Industrial Court NSW [2010]* and *Re Refugee Review Tribunal; Ex parte Aala [2000]*, highlighting how they apply to the specific circumstances of *Singh v Minister for Immigration*.

[Student name/number:] 1
SINGH V MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1901: A CASE
STUDY ANALYSIS ON JURISDICTIONAL ERROR
[Author(s) name(s):]
Migration Law and Practice
BLO5607- SUBJECT C: Visa Compliance, Cancellation and Review
Tutor(s) name(s):
Victoria University
Author(s) note:

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Table of Contents
Introduction................................................................................................................................3
An Analysis of the Jurisdictional Error Determined by the Federal Circuit Court....................4
Conclusion..................................................................................................................................6
Bibliography...............................................................................................................................7
A. Articles/Books/Reports.....................................................................................................7
B. Cases..................................................................................................................................7
C. Legislation.........................................................................................................................7
D. Other..................................................................................................................................7

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Introduction
Jurisdictional error can be described as a mistake of jurisdictional fact, that is, where a
jurisdictional fact is determined erroneously then this may result in a jurisdictional error. This
was the position held in SZMDS v Minister for Immigration and Citizenship1 where the Court
relied on illogicality or irrationality as factors to determine jurisdictional error.2 Jurisdictional
error arises where a judicial officer acts in excess of jurisdiction, fails to perform a duty, acts
in bad faith, identifies the wrong legal issue or relies on unreasonableness or illogicality, in
fact-finding and analysis.3 The case in question Singh v Minister for Immigration & Anor
[2017] FCCA 1901 is a migration case where the Tribunal determined that an applicant did
not qualify for a student visa based on considerable gaps in the applicant’s studies,
immigration history and course change among others. The Federal Circuit Court in its review
determined that the Tribunal’s approach amounted to a jurisdictional error as relevant factors
were not considered. The following discourse aims to analyse the concept of jurisdictional
error by examining the criteria used in the determination of the Federal Circuit Court in the
aforementioned case study.
An Analysis of the Jurisdictional Error Determined by the Federal Circuit Court
In its determination, the court relied on the provisions of s 499 of the Migration Act
1958(Cth) and the Ministerial Direction No 53 which provide a set of factors to be considered
in arriving at a decision when faced with the issues arising from the case in question. The
applicant’s argument in challenging the Tribunal’s decision was that it had failed to take into
consideration relevant material in terms of evidence highlighting the applicant’s mental
health and reasons for changing courses. In Re Refugee Review Tribunal; Ex parte Aala
[2000],4 the court held that acting outside the limits or powers bestowed upon a decision
1 SZMDS v Minister for Immigration and Citizenship [2009] FCA 210
2 Alan Freckelton, Administrative Decision-Making in Australian Migration Law (ANU eText, 2015) 191-92
3 Nicholas Aroney, Peter Gerangelos, Sarah Murray, James Stellios, The Constitution of the Commonwealth of
Australia: History, Principle and Interpretation ( Cambridge University Press, 2015) 532
4 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

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maker amounted to a jurisdictional error. This description was reaffirmed and expanded in
Kirk v Industrial Court NSW [2010],5 where the court recognised failure to consider relevant
factors a jurisdictional error.6
In the case in question, the Federal Circuit Court recognised that the Tribunal had limited its
consideration to factors that the Direction No 53 did not consider as issues for consideration
and disregarded the provision by the Direction to allow for reasonable career or study path
changes. Failure to consider relevant factors and evidence that would illuminate these factors
as such, guided by the principles in Kirk v Industrial Court NSW [2010],7 amounts to a
jurisdictional error. The court in question found that failure to consider the relevant material
mentioned above constituted a jurisdictional error.
Another factor the court relied on was unreasonableness; ignoring evidence with regard to the
applicant’s diagnosis and written statement providing reasons for the course change
amounted to failure in completing the exercise of authority embarked on as a decision
maker.8 The Tribunal in its analysis found that the applicant’s studies illuminated
considerable gaps; however, it evidently failed to consider that the applicant had been
diagnosed with depression which he averred contributed to the gaps in question. Evidently,
failure to assess this evidence led to an unreasonable finding which would have otherwise
been mitigated had the Tribunal considered the factors as required by law and provided for in
the Direction No 53.
The Tribunal’s approach amounts to a failure to consider relevant information, a
consideration of irrelevant factors as well as a failure to observe statutorily imposed
procedures. Additionally, it illuminates a manifestation of unreasonableness with regard to
the approach adopted. All these are characteristics of jurisdictional error as illustrated in Kirk
5 Kirk v Industrial Court NSW [2010] HCA 1
6 Victoria University, BLO5607(C) Visa Compliance, Cancellations and Review: Judicial Review Resource
Book (Victoria University, 2017) 9
7 Kirk v Industrial Court NSW [2010] HCA 1
8 Singh v Minister for Immigration & Anor [2017] FCCA 1901; See Htun v Minister for Immigration and
Multicultural Affairs [2001] FCA 1802

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v Industrial Court NSW [2010].9 Evidently, it can, therefore, be adduced that the Tribunal’s
decision constituted a jurisdictional error as it failed to adhere to the procedural guidelines
prescribed by the Direction No 53 and also adopted an unreasonable approach to
interpretation.
Conclusion
In conclusion, the discourse above describes jurisdictional error as where a decision maker
adopts a position or approach that constitutes an error of a jurisdictional fact. As illustrated in
the cases highlighted above, this errors can manifest in unreasonableness, failure to consider
prescribed factors or the consideration of irrelevant factors. In Singh v Minister for
Immigration & Anor [2017] FCCA 1901, the Tribunal’s decision failed to consider the
factors set by the Migration Act as well as the Ministerial Decision. It ignored relevant
information by way of evidence of the applicant’s depressions and written statement and
instead opted to restrict limit its consideration to irrelevant facts. Guided by the principles
illustrated above, this approach without a doubt amounts to a jurisdictional error.
9 Kirk v Industrial Court NSW [2010] HCA 1

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Bibliography
A. Articles/Books/Reports
Alan Freckelton, Administrative Decision-Making in Australian Migration Law (ANU eText,
2015)
Nicholas Aroney, Peter Gerangelos, Sarah Murray, James Stellios, The Constitution of the
Commonwealth of Australia: History, Principle and Interpretation (Cambridge University
Press, 2015)
Victoria University, BLO5607(C) Visa Compliance, Cancellations and Review: Judicial
Review Resource Book (Victoria University, 2017)
B. Cases
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802
Kirk v Industrial Court NSW [2010] HCA 1
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Singh v Minister for Immigration & Anor [2017] FCCA 1901
SZMDS v Minister for Immigration and Citizenship [2009] FCA 210
C. Legislation
Migration Act 1958(Cth)
Migration Regulations 1994 (Cth)
D. Other
Ministerial Direction No 53 Assessing the Genuine Temporary Entrant Criterion for Students
(2011)