LAWS2201 Lecture Notes - Lecture 7: Jurisdictional Error, Fax
Consequences of invalidity and jurisdictional error
Dunlop v Wollahara: Lord Diplock
• a decision that is affected by jurisdictional error is retrospectively invalid, and so no decision was made at all, and so
void ab initio
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Facts
• the Immigration Review Tribunal misplaced a fax advising that the appellant could not attend the hearing due to
illness. In the absence of the applicant, the tribunal upheld a decision cancelling his visa.
• Due to its oversight, the tribunal reversed its decision
• The Minister sought judicial review of this second decision on the basis the tribunal had already exercised its
statutory functions ,
• The HC accepted the tribunal's initial decision was legally flawed, it had denied the applicant a fair hearing and
also failed to constitute a decision on review by the Migration Act
Issue: whether a decision affected by JE can have any effectiveness at all, or treated as nullity?
• The Minister argued the member’s power of self-correction was not permitted b/c it had already decided
• The Court upheld the member’s power of self-correction on the basis that not because the members had a change
of mind but b/c the first decision was vitiated by jurisdictional error
Gaudron and Gummon JJ:
• A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in
law as no decision at all
• Illogical that a decision involving jurisdictional error, is binding until set aside.
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Document Summary
Dunlop v wollahara: lord diplock a decision that is affected by jurisdictional error is retrospectively invalid, and so no decision was made at all, and so void ab initio. Minister for immigration and multicultural affairs v bhardwaj (2002) 209 clr 597. Facts the immigration review tribunal misplaced a fax advising that the appellant could not attend the hearing due to illness. The minister argued the member"s power of self-correction was not permitted b/c it had already decided. The court upheld the member"s power of self-correction on the basis that not because the members had a change of mind but b/c the first decision was vitiated by jurisdictional error. Gaudron and gummon jj: a decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law as no decision at all.
