NOTICE TO THE FEDERAL COURT OF JURISDICTIONAL ERROR IN THE MATTER OF DJOKOVIC V MINISTER OF IMMIGRATION ~ MLG116/2022

 

JUDGES: CHIEF JUSTICE ALLSOP, JUSTICE BESANKO and JUSTICE O'CALLAGHAN

The Commonwealth of Australia granted Novak a temporary visa on dated 18 November 2021, attached. Once the decision is made to grant the visa, the decision maker is functus officio and cannot revisit the decision because they have changed their mind made an error within jurisdiction or because there has been a change in circumstances. To that extent functus officio applies and is based on finality of proceedings.

I draw the Courts attention to paragraph 52 in MINISTER FOR IMMIGRATION v BHARDWAJ 2002 HCA listed below in High Court case law.

The Federal Court in the first decision made by Kelly J could only make the following decision, that the department, upon granting Mr Djokovic his visa was now functus officio, and therefore the department could not revisit or remake an earlier decision. If the Minister was unsatisfied with the Courts decision he had the right of appeal to the High Court. Given that the Minister or an associated department was functus officio, he had no authority to exercise any personal powers pursuant to section 133 of the Migration Act 1958.

Furthermore the Court was exercising the judicial powers of the Commonwealth pursuant to section 71 of the Commonwealth Constitution. The Executive branch of Government, the Minister, has no authority to overturn the decision of a Court exercising the judicial powers of the Commonwealth because of the Separation of Powers Doctrine, R v Kirby Ex-parte The Boilermaker case. The Minister is incompetent to exercise the judicial powers of the Commonwealth and the only way that the decision of the court could be overturned was by a superior Court, the High Court exercising the judicial powers of the Commonwealth by way of appeal. The Minister threatened the Court that he had a personal power to overturn the decision of the Federal Court, and the Court did not dispute this with him and it could quite easily have satisfied a charge of contempt against the Minister.

Once the visa was granted by the Commonwealth, Mr Djokovic was allowed entry into the country and he was no longer subject to Federal jurisdiction, he was now subject to State jurisdiction. The State of Victoria granted him an exemption not requiring him to be vaccinated to play.

The Commonwealth has no authority to civilly conscript the Australian population either directly or indirectly to compel a medical procedure, given that is is expressly forbidden under section 51(xxiiiA) of the Constitution. This is the anterior question, whether someone agrees or disagrees with vaccination is irrelevant as it is a question of the authority of the Commonwealth to compel vaccination. In effect the Commonwealth is saying, you are disagreeing with our views, our policy in regards to vaccination, however, we have no such authority under the Constitution to compel vaccination, the Commonwealth does not have this power.

It was ultra vires the Court to leave Mr Djokovic the choice that the Commonwealth is strictly prohibited from anyway. The Federal Court has exceeded the Constitutional limit upon it pursuant to s51(xxiiiA), by leaving Mr Djokovic one of two choices, either he be vaccinated to play or he be deported, the Commonwealth having no such authority to the former.

Civil conscription in relation to medical services is just that. The true meaning of s 51(xxiiiA) is that civilians, the general public cannot be conscripted, that is forced in either a legal or practical sense to undergo any medical service including vaccination. This is a Constitutional guarantee and protection granted by the Constitution and is applicable to all Governments whether State or Federal pursuant to clause 5 and s106.

Overview of the Commonwealth Constitution of Australia1900 UK

The Australian Constitution has properly been described as ‘the birth certificate of a nation’. It also provides the basic rules for the government of Australia. Indeed, the Constitution is the fundamental law of Australia binding everybody including the Commonwealth Parliament and the Parliament of each State. Accordingly, even an Act passed by a Parliament is invalid if it is contrary to the Constitution.

5. Operation of the Constitution and laws This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

106. Saving of Constitutions The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

In is incumbent on the Federal court once notified of a jurisdictional error which is properly regarded in law as no decision at all, and therefore the duty upon this Court to make a decision that complies with law, remains unperformed. Therefore the court is non functos officio because it exercised a power ultra vires the Court. There is no requirement upon the Court to have such a decision overturned by a superior Court as per the case of Bhardwaj, the Minister in that case did not have to go to a Court to have an earlier decision overturned, because the earlier decision of the Minster was infected with jurisdictional error and was properly regraded in law as no decision at all. Therefore in the case of Djokovic v Minister there is no decision and the duty of the Court remains to make a decision that complies with law.


The mere fact that Mr Djokovic does not have appellant rights under the Federal Court Act does no
t immunise the Federal Court from making decisions that do not comply with law. The case of Immigration Minister v Li is illustrative of this listed below in case law.

Excerpt from ABC News By Brad Ryan and staff

Posted Sun 16 Jan 2022 at 5:54pmSunday 16 Jan 2022 at 5:54pm, updated Yesterday at 1:57pm

Chief Justice James Allsop stressed the court was ruling on the lawfulness and legality of the decision, not whether it was the right decision.

"It is no part of the function of the court to decide upon the merits or wisdom of the decision," the judge said.

He said the court would not be in a position to deliver its reasons today.

Djokovic was ordered to pay costs.

Mr Hawke took to social media just before 11pm AEDT on Sunday to confirm Djokovic had left Australia.

"I welcome today's unanimous decision by the Full Federal Court of Australia, upholding my decision to exercise my power under the Migration Act to cancel Mr Novak Djokovic's visa in the public interest," he said.

"I can confirm that Mr Djokovic has now departed Australia."

 

It is absolutely within the Federal courts jurisdiction to decide whether a decision is unreasonable irrational or illogical sometimes referred to as Wednesbury unreasonableness, and this is absolutely a ground for judicial review. The case of Immigration clearly demonstrates the High Court, exercising the same Judicial Powers of the Commonwealth as the Federal Court, heard and decided on the grounds of unreasonableness, irrationality or in favour of Miss Li and therefore constituted a jurisdictional error on the part of the decision maker. Granting her a Writ of Prohibition and Mandamus pursuant to section 75(v) of the Constitution, excerpts from the case provided below for your perusal. It is on this ground that the Federal Courts decision to deport Mr Djokovic constituted a jurisdictional error which is properly regarded in law as no decision at all (Bhardwaj). Thus a decision by the federal Court in relation to Mr Djokovic's visa that complies with law remains to be performed by the Court. t/his is irrespective of whether Mr Djokovic has appellant rights or not.

HIGH COURT CASE CASE LAW

MINISTER FOR IMMIGRATION AND CITIZENSHIP V XIUJUAN LI & ANOR 2013 HCA

UNREASONABLENESS & ILLOGICALITY IN A DECISION

In relation to decisions that are unreasonable and lack intelligible justifications please see the following case law for illustration:

The decision lacks reasonableness and demonstrates an unintelligible justification.

In respect of the trail judges decision made is infected with jurisdictional error and is properly regarded in law as no decision at all because it was unreasonable and lacked any intelligible justification. Although this case was in relation to discretionary powers of a decision-maker,  Immigration Minister v Li 2013 HCA 18, it applies equally to decisions made outside of a discretionary power and this is so because of the presumption of law, that all decision makers must make decisions according to reason and logic and not ones that are arbitrary or capricious.

In relation to decisions that are unreasonable and lack intelligible justifications please see the following case law for illustration:

Minister for Immigration and Citizenship v Li [2013] HCA 18

French CJ:

22. “Bearing that distinction in mind, it is appropriate to turn to the general question whether the MRT’s decision not to defer its determination was so unreasonable as to constitute jurisdictional error”

Reasonableness

23. Every statutory discretion, however broad, is constrained by law. As Dixon J said in Shrimpton v Commonwealth (1945 HCA) :

[C]omplete freedom from legal control, is a quality which cannot be given under our Constitution to a discretion, if, as would be the case, it is capable of being exercised for purposes, or given an operation, which would or might go outside the power from which the law or regulation conferring the discretion derives its force”

Every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred. Where the discretion is conferred on a judicial or administrative officer without definition of the grounds upon which it is to be exercised then:

..the real object of the legislature in such a cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case “

That view, however, must be reached by a process of reasoning.

24. Every discretion has to be exercised, as Kitto J put in R v Anderson; Ex parte Ipec-Air Pty Ltd, according to the rules of reason,” His Honour, paraphrasing Sharp v Wakefield, said:

a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice , not according to private opinion; according to law , and not humour, and within those limits within which an honest man , competent to discharge the duties of his office , ought to confine himself “.

28. “...as explained by Lord Greene (in Wednesbury Corporation in relation to unreasonableness in decision making) “it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision” and “However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense”.

29. A connection between vitiating unreasonableness and an implied legislative intention was made by Brennan CJ in Kruger v Commonwealth [1997}:

[W]hen a discretionary power is statutorily conferred on a repository , the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.”

Hayne, Kiefel, Bell JJ

An unreasonable exercise of discretion?

63. “Because s 363(1)(b) contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from s357A(3) , but also from a presumption of law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably”.

64. A standard of reasonableness in the exercise of a discretionary power given by statute has been required by the law long before the first statement of “Wednesbury unreasonableness” in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.

65. In Sharp v Wakefield, it was said that when something is to be done within the discretion of an authority, it is to be done “according to law “. It is to be legal and regular, not arbitrary, vague or fanciful. The discretion must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”

68. Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the endpoint. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable decision maker could have arrived at it- nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgement in Wednesbury. This aspect of his Lordship’s judgement may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

76. “...Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may applied to a decision which lacks an evident and intelligible justification”

Gageler J

105. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision- making process”

123. “Ms Li was certainly entitled to expect a decision according to law. She was also entitled to expect a decision according to reason. She was entitled to expect the MRT to be reasonable”

124. “No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment”.

 

DECISION OF THE FEDERAL COURT

TRACEY; Ex parte RYAN (1989) HCA

DEANE J.

1. To study the provisions of Ch.III of the Constitution "is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap.III" (per Dixon C.J., McTiernan, Fullagar and Kitto JJ., Reg v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at p 270). Ours is a Constitution "which deals with the demarcation of powers, leaves to the courts of law the question of whether there has been any excess of power, and requires them to pronounce as void any act which is ultra vires", and which reposes the judicial power of the Commonwealth "exclusively in the courts contemplated by Chap.III" (per Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ., Reg. v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157, at pp 165166). "In this distinct and separate existence of the judicial power ... consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were (judicial power) joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by the statute of 16 C.I. c.10. which abolished the court of star-chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state" (Blackstone, Commentaries, (1830) vol.1, p 269).

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT AND RAJIV BHARDWAJ2002 HCA

Decisions involving jurisdictional error:

51. There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all [33] . Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

52. The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:

"As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ... To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law." [34]

53. In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.

115. Consistently with the Act , it is impossible to postulate a residual power of the Tribunal to revoke an earlier decision that formally complied with provisions of the Act (or otherwise to withdraw from, or retrieve it or ignore it). Under the Act , the "decision" involved a formal process which immediately set in train a series of procedural and substantive consequences. Those provisions either had to be obeyed or they followed automatically by force of the Act itself. Other legislation might yield a different conclusion. This legislation denies it.

 

41 pages, use the toolbar at top to open and download.

Affidavit-of-Novak-Djokovic-sworn-on-10-January-2022 highlighted Visa

 

 

If you can spare a few dollars for the creators of this website to continue their research to bring you more great content, any amount, no matter how great or small, would be greatly appreciated.