Federal Court: AAT made 1st decision, but found out that it was affected by jurisdictional error and made 2nd decision. Both decisions affirmed delegate's decision. Appellant applied for judicial review of 1st decision, arguing that AAT was functus officio after making 1st decision (i.e. lacked power to make 2nd decision). Presumably, Appellant did so in the expectation that it would be easier to establish jurisdictional error in 1st decision. After all, AAT itself had recognised error in it. Is Bhardwaj authority for a "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever"? Or will the consequence, if any, depend upon the particular statute? Appellant argued the latter applied and relied on s 430(2A), which provided that AAT has no power to vary or revoke a decision, to argue that the AAT lacked power for 2nd decision.
The questions to the Federal Court (FCA) were as follows:
Question 1: Is the High Court's decision in Bhardwaj authority for a "universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever"? Or will the consequence depend upon the particular statute?
Question 2: If the consequences of jurisdictional error will depend upon the particular statute, should the word "decision" in s 430(2A) of the Migration Act 1958 (Cth) be interpreted as meaning any decision, including a decision affected by jurisdictional error, with the result that the Tribunal could not make the decision which was affected by jurisdictional error again?
The FCA answered those questions as follows: