FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
2. The appellant pay the first respondent's costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 Charges have been brought in the United States of America against the appellant, Mr Tsvetnenko. The indictment alleges, amongst other things, that Mr Tsvetnenko was a participant in conspiracies to commit wire fraud and money laundering and participated in a fraudulent scheme to place unauthorised charges for text message services on mobile phones by a practice called 'auto-subscribing'. It is alleged that many millions of dollars were earned by the scheme.
2 Mr Tsvetnenko was born in Russia. He immigrated to Australia in 1992 when he was 12 years old and has lived in Australia since then. He is an Australian citizen and holds both Australian and Russian passports. He was married in 2008, but is separated from his wife. There are two young children of the marriage.
3 A request for the extradition of Mr Tsvetnenko was made by the United States in July 2018. A warrant for his arrest was issued under s 12 of the Extradition Act 1988 (Cth) in November 2018. He was arrested on 20 December 2018 and since his arrest has been held in custody. Mr Tsvetnenko has challenged his eligibility for extradition but his challenge is yet to be determined.
4 On 29 January 2019 a magistrate refused an application for bail by Mr Tsvetnenko and he was remanded in custody. An urgent application for judicial review of the magistrate's decision was brought. The application was dismissed on 22 February 2019 and Mr Tsvetnenko now brings an appeal against that decision.
5 Amongst other things advanced to support his bail application before the magistrate, Mr Tsvetnenko said:
(1) he has made clear that he is willing to surrender his passports to Australian authorities pending the hearing of his challenge to extradition;
(2) he has known for some time of the charges brought against him and the steps being taken to seek his extradition, yet he has not taken steps to abscond;
(3) he did not flee the United States and the charges relate to conduct alleged to have occurred principally or exclusively in Australia;
(4) he has strong ties to people in Australia including his children and his parents and is not a risk to the community;
(5) if he is held in custody then he will not be able to obtain appropriate medical treatment and there is a risk of deterioration to his health; and
(6) his co-accused have been released on bail in the United States and if he was tried for such offences in Australia bail would also be available.
6 Some of these matters are contested by the United States. In particular, it is said that there is a real risk of flight given the seriousness of the charges and the fact that Mr Tsvetnenko is very wealthy and he could live in Russia which has no extradition treaty with the United States.
The requirement for 'special circumstances'
7 Section 15(2) of the Extradition Act provides that a person arrested under an extradition arrest warrant shall be remanded in custody or, subject to subsection (6), on bail. Subsection (6) provides:
A magistrate or eligible Federal Circuit Court Judge shall not remand a person on bail under this section unless there are special circumstances justifying such remand.
8 In United Mexican States v Cabal  HCA 61; (2001) 209 CLR 165, the High Court (Gleeson CJ, McHugh and Gummow JJ) stated at  that bail in extradition cases should be granted only when the following two conditions are fulfilled:
First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition". Secondly, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions.
9 The Court also stated that the United States cases 'give valuable guidance as to what constitutes special circumstances': at . The Court then noted that, in the context of extradition, the view had been taken from an early stage that bail 'should be in practice an unusual and extraordinary thing'. In that context, the Court said:
It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances justifying bail.
10 Further, at  the Court warned about approaching bail in an extradition matter with 'a predisposition against unnecessary or arbitrary detention' and then said:
The Parliament has made it plain that bail is not to be granted unless special circumstances are proved. However unpalatable such a conclusion may be to the mind of the common lawyer, the Parliament believed that the fulfilment of Australia's treaty obligations makes the principles governing bail in domestic cases inapplicable in extradition cases.
11 Finally in describing the correct approach to bail in extradition cases, their Honours stated at :
Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight. If a real risk of flight exists, the proper exercise of the discretion will ordinarily require the refusal of bail.
12 After identifying error in the approach adopted in earlier cases, the Court then concluded at :
Earlier in this judgment, we stated the principles that should be applied in determining whether to grant bail under the [Extradition] Act. Together with the assistance to be gained from the United States decisions on "special circumstances", those principles will enable the Federal Court to produce a consistent body of case law on the bail requirements of the Act.
13 It is to be noted that the High Court referred to the practice in the United States which was to 'consider the risk of flight and only then consider whether special circumstances exist'. The Court then described the existence of special circumstances as 'an essential condition of the grant of bail'. In that context, the Court stated at :
It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion. It may be going too far to say that, if there is any risk of flight, the Act requires that bail be refused, even if there are special circumstances. In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight. Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk.
14 So, there must be special circumstances. If so, then the risk of flight is to be considered together with all matters relevant to the exercise of a general discretion whether to grant bail. In the exercise of that general discretion, if there is a real risk of flight then the statutory discretion should be exercised by refusing bail (save for the extraordinary case). It is in that sense that the requirement that there be no real risk of flight becomes a second condition that should be fulfilled before bail is granted to a person arrested under an extradition arrest warrant.
15 As to special circumstances, a particular factor or a combination of factors may be relied upon. The High Court considered various individual factors and whether they alone would be sufficient to satisfy the statutory language. Imprisonment causing a serious deterioration in health was one such factor. As was a high probability of success in resisting extradition. Neither a low risk of flight nor an entitlement to bail in the country to which the person would be extradited was such a factor. Otherwise, noting that the United States cases give valuable guidance, the Court surveyed those decisions where a particular combination of factors were or were not considered to be 'special circumstances': at -. In some instances, a combination of factors that included a factor which, of itself, would not be special, was found to constitute 'special circumstances'. The likelihood of bail in the extraditing country was one such factor. However, in another instance, the likelihood of bail together with other factors was found to be insufficient to meet the requirement for special circumstances.
16 More usually, an applicant for bail will rely upon a combination of circumstances. In such instances, it will be important to evaluate the combination of factors together in determining whether the prohibition in s 15(6) applies to prevent the grant of bail. Perram J in United States of America v Green  FCA 638 at - lamented the absence of direct guidance in Cabal as to how a magistrate or eligible judge should determine whether multiple non-special circumstances may together constitute special circumstances. It appears that the task is to consider in aggregate the matters relied upon and reach a view as to whether their summation gives them a character that each lack when viewed individually. The circumstances, when combined in one person, must be sufficient to make them different from the circumstances a person 'would ordinarily endure': Cabal at . The matters relied on 'need to be extraordinary and not factors applicable to all defendants facing extradition': at . The Court referred to bail being 'ordinarily refused because there is a presumption that the defendant will flee the jurisdiction': at . In considering whether delay will constitute special circumstances, the Court said that it would be such a circumstance 'only when it is outside what could be regarded as the normal range for offences of the type and complexity of the proceedings': at  (a form of words that may be applied where multiple non-special circumstances are relied upon). The Court also described being held in custody as 'the general rule' in extradition cases: at . Taken together, these statements require that a combination of non-special circumstances must go further than simply demonstrating distinctive aspects of the person seeking remand on bail that make them different from others facing similar extradition charges. Rather, the circumstances must be different in a respect and to a degree that means being remanded in custody will have adverse consequences that would not generally apply to those detained during the course of the extradition process. Further, they must take the case out of the ordinary when it comes to the disadvantages of being remanded in custody during the course of extradition proceedings (for charges of the kind involved in the particular case). The disadvantages must be of a kind that makes the particular instance extraordinary or exceptional. A particular combination of circumstances is not 'special' for the purposes of the Extradition Act provisions concerning bail unless they rise to that character. Otherwise, the circumstances fall within those which generally apply and bail must be refused.
17 Therefore, on any application for bail in an extradition case it will be important to consider the precise combination of circumstances advanced in support of the application as satisfying the statutory requirement that there must be 'special circumstances'. It will be necessary to evaluate whether those circumstances have been established and then consider whether those that have been established, when taken together, are 'special' in the sense that they are different from those ordinarily to be endured by a person facing extradition. The circumstances may be special because one particular circumstance takes the case out of the ordinary or because the combination of circumstances does so. If and when special circumstances are proved, then all the circumstances of the case must be considered, the chief of those being the risk of flight. When there is a real risk of flight ordinarily bail should be refused.
18 There is no further or residual discretion to be exercised. There is only one discretion, namely whether to grant bail in all the circumstances. Because there is a statutory prohibition on granting bail if there are not special circumstances, the discretion cannot be exercised in favour of remanding a person on bail unless those circumstances are affirmatively established.
19 The notice of appeal raises 20 separate grounds. However, in written and oral submissions they were presented as raising five principal issues each of which, if decided favourably to Mr Tsvetnenko, were said to demonstrate errors by the magistrate that the primary judge should have upheld as jurisdictional errors leading to an order quashing the decision by the magistrate on the bail application. Expressed as propositions, they are:
(1) the magistrate bifurcated the facts into two discrete categories: first, those relevant to special circumstances and second, those relevant to risk of flight, which was an approach guided by an erroneous view of the construction of s 15(6) of the Extradition Act;
(2) the magistrate failed and refused to have regard in combination to all of the circumstances advanced as special circumstances;
(3) the magistrate rejected guidance by the United States authorities as to what may constitute special circumstances when the decision in Cabal required the decision as to what constituted special circumstances to be guided by those decisions;
(4) there was no evident or intelligible justification for (a) the findings by the magistrate that there was no likely deterioration in the health of Mr Tsvetnenko if he was detained in custody and (b) the conclusion by the magistrate that there was a real risk of flight such that each of those matters meant the decision was legally unreasonable; and
(5) the magistrate decided that bail should not be granted 'in any event' (even assuming there were special circumstances, no real risk of flight and no risk to the community or anyone else) without evident or intelligible justification.
20 The first three propositions allege errors of law which resulted in the magistrate failing to properly undertake the statutory task entrusted by s 15(2). The remaining two propositions allege legal unreasonableness.
21 For the following reasons it has not been shown that there was any jurisdictional error in the magistrate's decision. It follows that the primary judge was correct to dismiss the application for judicial review. The appeal should be dismissed with costs.
The jurisdiction of the magistrate
22 The case before the primary judge and on appeal was that there had been jurisdictional error. There was no claim that the magistrate's decision was reviewable for non-jurisdictional error on the face of the record (as to the availability of such review under the original jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth) see DMI16 v Federal Circuit Court of Australia  FCAFC 95 at -, applying Baker v Patrick Projects Pty Ltd  FCAFC 165; (2014) 226 FCR 302 at , see also Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd  HCA 4 at ). The express right to statutory review conferred by s 21 of the Extradition Act does not apply. There is no right of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in respect of decisions made under the Extradition Act so it is the original jurisdiction under the Judiciary Act that must be considered: Director of Public Prosecutions (Cth) v Kainhofer  HCA 35; (1995) 185 CLR 528. So the application is founded on the original jurisdiction.
23 In Hossain v Minister for Immigration and Border Protection  HCA 34, Kiefel CJ, Gageler and Keane JJ described jurisdictional error in a statutory decision-making process as referring to 'a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it': at . Therefore, it is important to have close regard to the terms of the particular statute conferring the decision-making power in order to identify the extent of the authority entrusted to the particular repository. 'The question of whether an error is jurisdictional is, and always will be, context-specific': SZUWX v Minister for Immigration and Border Protection  FCAFC 77; (2016) 238 FCR 456 at  (Allsop CJ).
24 The statutory authority that is relevant in the present case is contained in s 15(2) of the Extradition Act. It confers a discretionary power upon a magistrate or eligible Federal Circuit Court judge to remand on bail a person arrested under an extradition arrest warrant.
25 For the following reasons, in making a decision under s 15(2) whether to grant bail, a magistrate or eligible judge acts administratively. Eligible judges must consent to their nomination: s 45A. Functions and powers conferred upon eligible judges are conferred in their personal capacity and not as members of the Federal Circuit Court: s 45B. The Governor-General makes arrangements with the Governor of a State for the performance by magistrates of that State of the functions of a magistrate under the Extradition Act: s 46. As noted by Perram J in United States of America v Green, the High Court has reached the view in respect of the making of determinations as to eligibility for surrender under s 19 of the Extradition Act that they are an exercise of administrative power: Vasiljkovic v Commonwealth of Australia  HCA 40; (2006) 227 CLR 614 at  (Gleeson CJ) and  (Gummow and Hayne JJ, Heydon J agreeing). The same provisions as to appointment apply to magistrates and eligible judges when exercising the power under s 15(2) and when making orders as to eligibility for surrender. It has been held that the process of extradition is an exception to the general proposition that under the Constitution the power to order that a citizen be confined in custody is entrusted exclusively to Chapter III Courts: Kruger v Commonwealth of Australia  HCA 27; (1997) 190 CLR 1 at 109-110 (although not included in the list of exceptions in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs  HCA 64; (1992) 176 CLR 1 at 28, these are examples and the list is not exhaustive).
26 However, the administrative authority conferred by s 15(2) is expressed to be subject to s 15(6) which is expressed as a statutory prohibition against remanding a person on bail unless there are special circumstances justifying the remand. The phrase 'special circumstances' is also used in s 21(6) which confers a power on courts acting judicially to grant bail when there is an application to review an order concerning the eligibility of a person for surrender to an extradition country only if there are special circumstances justifying release on bail. In Cabal the High Court dealt with both provisions together and without distinction: at .
27 Nevertheless, by using the expression 'special circumstances' to circumscribe a prohibition or qualifying condition as to when a power to grant bail arises, s 15(6) may invite an objective evaluation as to whether the prohibition operates. That is to say, it may not be a matter for the magistrate or eligible judge to finally determine whether particular circumstances are special circumstances for the purposes of circumscribing the ambit of the prohibition. Rather, it may be a jurisdictional question in each case as to whether the prohibition applies. If that were the case, on an application for bail the magistrate would have a duty to form a view as to whether there were exceptional circumstances, but on review, it would be a matter for the Court to determine whether the circumstances relied upon (and found to be established) meet the requirement that they be 'special'. Put another way, the magistrate or eligible judge could not authoritatively determine whether particular circumstances, taken together, were sufficient for the prohibition to apply. As to these matters see: R v Hickman; Ex Parte Fox and Clinton  HCA 53; (1945) 70 CLR 598 at 618 (Dixon J) and Re Adams and the Tax Agents' Board (1976) 12 ALR 239 at 242 (Brennan J).
28 It is a question of statutory construction as to whether an evaluation that must be undertaken in order to determine whether a statutory power arises is entrusted to the repository of the power or whether it is a precondition that must be satisfied before the jurisdiction of the repository is enlivened: Timbarra Protection Coalition Inc v Ross Mining NL  NSWCA 8; (1999) 46 NSWLR 55 at - (Spigelman CJ, Mason P and Meagher JA agreeing); and Woolworths Ltd v Pallas Newco Pty Ltd  NSWCA 422; (2004) 61 NSWLR 707 at  (Spigelman CJ, Mason P agreeing). The relevant authorities were reviewed by Besanko J in Australian Postal Corporation v D'Rozario  FCAFC 89; (2014) 222 FCR 303 at -.
29 A state of fact which must exist before a power is enlivened has been referred to as a jurisdictional fact: Corporation of the City of Enfield v Development Assessment Commission  HCA 5; (2000) 199 CLR 135 at  (Gleeson CJ, Gummow, Kirby and Hayne JJ); Gedeon v Commissioner of the New South Wales Crime Commission  HCA 43; (2008) 236 CLR 120 at  (Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ); and Plaintiff M70/2011 v Minister for Immigration and Citizenship  HCA 32; (2011) 244 CLR 144 at - (Gummow, Hayne, Crennan and Bell JJ). The term is perhaps inapt because it may be applied to an opinion or an assessment that must be held or undertaken before a decision making power arises (Minister for Immigration and Multicultural Affairs v Eshetu  HCA 21; (1999) 197 CLR 611 at  (Gummow J)) or a state of satisfaction that must be reached (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB  HCA 32 at  (Gummow and Hayne JJ, Gleeson CJ agreeing)). However, where the opinion or state of satisfaction is to be formed by the same decision-maker who is entrusted with the ultimate power that is to be exercised it may be appropriate to use the term pre-condition to describe the power for reasons stated by Basten JA in D'Amore v Independent Commission Against Corruption  NSWCA 187 at .
30 Importantly, the discretionary power conferred by s 15(2) is not expressly conditioned upon the magistrate or eligible judge being satisfied as to any particular matter. In particular, it is not expressly conditioned upon the magistrate being satisfied that there are special circumstances. The discretion to be exercised by the magistrate or eligible judge arises upon arrest of a person under an extradition warrant. When arrested the person must be brought before a magistrate or eligible judge: s 15(1). The person must then be remanded. It falls to the magistrate or eligible judge to exercise a discretion whether to remand in custody or on bail. The requirement that there be special circumstances is separately stated as a matter that must exist before there is any discretion to release on bail.
31 The issue as to whether the ambit of the prohibition expressed in s 15(6) was a matter for adjudication by the magistrate or eligible judge in the course of considering whether to grant bail did not arise in Cabal. In that case there was an application for leave to appeal against the decision by Kirby J. The Court gave leave and allowed the appeal on the basis that there was error in the exercise of the discretion. As the application was not brought by way of judicial review of a decision by a magistrate or eligible judge there was no occasion to consider the extent of the jurisdiction entrusted by s 15 of the Extradition Act and whether it conferred authority upon the magistrate or eligible judge to determine whether the circumstances were special.
32 However, the High Court in Cabal did contemplate that it would be the Federal Court that would produce a consistent body of case law on the bail requirements of the Extradition Act. If it was the case that the adjudication as to whether particular circumstances were 'special circumstances' was a matter entrusted to the magistrate or eligible judge when deciding whether to remand in custody or on bail then the authority to decide whether particular circumstances were special circumstances would not be conferred on the Federal Court. On review the issue for the Federal Court would only be whether there was jurisdictional error in undertaking an evaluation entrusted to the magistrate or eligible judge.
Claim that magistrate acted on an incorrect understanding of the applicable law
33 The case for Mr Tsvetnenko before the primary judge and on appeal was formulated on the basis that the magistrate failed to proceed 'reasonably and on a correct understanding and application of the applicable law' in a number of respects when considering whether there were special circumstances. The phrase is taken from Hossain where Kiefel CJ, Gageler and Keane JJ held that both matters were implied conditions of the statutory conferral of the particular decision-making authority on the Minister such that the required state of satisfaction had to be formed by the Minister acting reasonably and on a correct understanding and application of the applicable law: at . A decision that was not formed in accordance with that condition would be outside authority if it met the threshold of materiality which a statute is ordinarily to be interpreted as incorporating: at .
34 It is now well-established that statutory discretionary powers to be exercised by administrative decision-makers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law: Minister for Immigration and Border Protection v SZVFW  HCA 30 at , , , , , . So, it may be accepted that the first condition applied to the magistrate's exercise of discretion in the present case. However, the decision in Hossain did not state a general principle of statutory construction to the effect that there is an implied obligation that all powers conferred on administrative decision-makers are to be exercised on a correct understanding and application of the applicable law such that a material breach of that obligation would be jurisdictional.
35 In Craig v State of South Australia  HCA 58; (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ said that if an administrative decision-maker 'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion' in a manner that affects the exercise of power then the decision-maker exceeds its authority or powers: at 179. Such an error was said to be jurisdictional. Significantly, not every error of law was described as jurisdictional. Rather, to have that character the error must have a consequence of the kind described. Such errors will take the decision-maker out of the field of authority reposed in the decision-maker by the statute. Implicitly, there are other errors of law which will not.
36 In Minister for Immigration and Multicultural Affairs v Yusuf  HCA 30; (2001) 206 CLR 323 at , McHugh, Gummow and Hayne JJ said that the list of errors in Craig was not exhaustive. Rather, what was important was that if an error of those types was made the decision-maker did not have authority to make the decision. It was specifically observed that there was no suggestion that the tribunal in that case was given authority 'to authoritatively determine questions of law or to make decisions otherwise than in accordance with the law' (thereby suggesting that there may be such instances).
37 In Probuild the Court was concerned with the extent to which there could be an order in the nature of certiorari to quash a determination by an adjudicator acting under state legislation for an error of law on the face of the record that was not jurisdictional error. Necessarily implicit in the decision is a recognition of such a category of error of law. It might be described as an error of law in the course of making a decision which is of a character entrusted to the adjudicator. The plurality found that the general jurisdiction of the Supreme Court of New South Wales to review for non-jurisdictional error on the face of the record had been excluded by the legislation that conferred decision-making authority on the adjudicator. Their Honours confined their reasons to the circumstances of the particular case stating that it was 'not necessary to examine any wider question which might arise in relation to the jurisdiction of a State Supreme Court, in other kinds of cases, to grant relief in the nature of certiorari for error of law on the face of the record': at .
38 Gageler J delivered a separate concurring judgment. His Honour held that there was a common law presumption of statutory interpretation to the effect that 'a statutory conferral of decision-making authority on a person or body other than a court is conditioned by an implied statutory requirement that the person or body can validly exercise that authority only on a correct understanding of the law applicable to the decision to be made': at . So, absent exclusion by plain words of necessary intendment, an administrative decision-maker must proceed by reference to correct legal principles correctly applied and to proceed otherwise was to commit jurisdictional error: at . This appears to be an expansive view of the circumstances in which an error of law by an administrative decision-maker may be jurisdictional. In the usual case, it appears to leave little room for an error of law by an administrative decision-maker that is not jurisdictional. However, his Honour also found that in the case under consideration there were plain words conferring on the adjudicator statutory authority to make a decision concerning the common law or statutory rights that the parties may have under a construction contract the subject of the adjudication. Therefore, an error of law as to such matters was not jurisdictional and could not be reviewed whether as an error of law on the face of the record or otherwise.
39 Edelman J also delivered a separate concurring judgment. His Honour found that the relevant legislation immunised from judicial review any non-jurisdictional error by the adjudicator despite the narrow approach to construction usually adopted in order to protect access to the courts to correct legal errors relating to a person's rights. So, his Honour did not embrace the approach of Gageler J.
40 So, it is not the case that there is a general principle applicable to the exercise of all administrative powers that they must be exercised on a correct understanding and application of the applicable law. Such a requirement may arise in respect of a particular power, as was decided in Hossain. However, in another case, a misunderstanding as to the content of the law to be applied in the course of making the decision may be a matter that is within the authority entrusted to the decision-maker. In such a case, as the law presently stands, it may be reviewable as an error of law on the face of the record, but it is not jurisdictional.
41 The decision in Craig makes clear that inferior courts are in a different position. They are entrusted with judicial power. In contrast to administrative powers (at 179-180):
… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.
42 What is clear from Probuild is that the obverse is not true. When it comes to administrative decision-makers exercising statutory powers it will be necessary to consider the nature and extent of the power in each case. There can be within jurisdiction errors of law by administrative decision-makers.
43 So, the legal foundation for the manner in which the claims of jurisdictional error by reason of error of law were formulated on behalf of Mr Tsvetnenko cannot be sustained. Jurisdictional error would not be established simply by demonstrating that the view of the law taken by the magistrate in the course of expressing reasons for refusing to grant bail was a view with which this Court may disagree. The error had to be of a kind that it misdirected the magistrate in a manner and to an extent that there was a failure to undertake the statutory task or the task was discharged in a manner that meant it was outside the authority conferred.
44 Further, for reasons stated above, it is possible that the magistrate could not determine authoritatively whether there were special circumstances. Whether that is so turns upon the proper construction of s 15(6), a matter on which the Court did not hear argument given the way the case was formulated before the primary judge and on appeal. One matter that may count against the conclusion that the existence of special circumstances was a jurisdictional fact would be the evaluative character of the decision to be made as to whether there are special circumstances: Plaintiff M70/2011 at  (French CJ) referring to Australian Heritage Commission v Mount Isa Mines Ltd  HCA 10; (1997) 187 CLR 297 at 303-304. Another may be the inconvenience that may result: Parisienne Basket Shoes Pty Ltd v Whyte  HCA 7; (1938) 59 CLR 369 at 391 (Dixon J considering the position where it said that the jurisdiction of an inferior court is conditioned upon the occurrence or existence of an event, fact or circumstance) but see Trives v Hornsby Shire Council  NSWCA 158; (2015) 89 NSWLR 268 at - (Basten J).
45 However, having regard to the way in which the case was advanced in this Court it is not necessary to form a view as to the ambit of the jurisdiction of the magistrate when it comes to special circumstances. The errors alleged were errors of law in the course of the magistrate's reasoning (issues 1, 2 and 3) and unreasonableness (issues 4 and 5). For the following reasons, it has not been demonstrated that there was any jurisdictional error of law. Nor has it been demonstrated that there was jurisdictional error on the basis of legal unreasonableness.
Issue 1: Alleged bifurcation
46 In his reasons, the magistrate made a number of statements to the effect that matters bearing on flight risk did not play a part in special circumstances. In doing so, his Honour followed the decision of Robertson J in Barney v United Kingdom  FCA 51; (2012) 215 FCR 570.
47 The approach of the magistrate was a proper recognition that an absence of a risk of flight could never be a special circumstance in and of itself. Nor could it be a factor which when added to other circumstances could give them the requisite 'special' character to make the particular case one that was out of the ordinary. This is because the circumstances pertaining to the person seeking bail that must be different from those faced by extraditees generally are those which can produce disadvantages to be endured by that person if held in custody. The degree of risk of flight of a particular person is not a matter that gives rise to a disadvantage to be endured. It does not alter the effects of being held in custody.
48 In Cabal the Court found that the conditions under which Mr Cabal had been held were 'extreme' and 'extraordinarily harsh' and they alone constituted special circumstances. The Court also found that other matters that had been referred to by Kirby J in granting bail 'were not special circumstances'. Those matters did not include the risk of flight. The Court went on to find that the exercise by Kirby J of the discretion by granting bail had miscarried. In re-exercising the discretion the Court found that Mr Cabal had failed to establish that if he was released on bail there was no real risk that he would flee from Australia. There was no suggestion that a claim that there was no real risk of flight was a matter to be considered as part of evaluating whether there were special circumstances.
49 There are other indications in the reasons in Cabal to the effect that the absence of a real risk of flight is not a matter to be brought to account in considering whether there are exceptional circumstances. First, after referring to the practice in the United States which is to consider the risk of flight and only then consider whether special circumstances exist, the Court said at :
In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion.
The language used indicates that the question of flight is to be considered separately and following a determination as to whether there are special circumstances.
50 Second, the Court described the discretion whether to grant bail as falling to be exercised even if the two conditions stated by the Court were both were fulfilled. It did so in terms that indicated that the risk of flight was to be considered separately by referring to a need to prove both special circumstances and no real risk of flight: at .
51 Third, the Court rejected the proposition that the test to be applied is whether the proven special circumstances are such that it is not probable that the person will abscond. If the absence of a risk of flight was indeed a matter to be evaluated as part of special circumstances then no such issue would arise. A view would be formed as to risk of flight in the course of considering whether there were special circumstances. The Court then stated the correct approach in the following terms: 'Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight': at .
52 For the United States it was submitted that the High Court had made clear that risk of flight could not form part of special circumstances when it said at  in Cabal that a low risk of flight is not a special circumstance. However, that statement of itself does not support that submission for two reasons. First, at that point in the reasons, the Court was dealing with whether particular factors may in and of themselves constitute special circumstances. It was not dealing with a case where a combination of factors are relied upon. Second, later in the reasons, the Court emphasised that in addition to special circumstances there must be 'no real risk of flight' because in exercising the discretion an absence of flight risk is ordinarily a necessary but not a sufficient condition of bail. In that context it could be that the Court had in mind the view that there had to be no real risk of flight rather than a low risk. However, as explained above, once there is regard to the reasons as a whole it is apparent that the Court's reasons do not support the contention advanced for Mr Tsvetnenko that the absence of any real risk of flight may be combined with other factors to establish special circumstances for the purposes of s 15(6) of the Extradition Act.
53 For Mr Tsvetnenko it was said that certain United States cases supported the view that flight risk could form part of the evaluation as to whether there were special circumstances. However, resort to the United States cases cannot be a basis for departing from the statements in Cabal as to what was meant by the term 'special circumstances' as used in the Extradition Act provisions concerned with remand on bail during the course of extradition proceedings. The United States cases provide 'guidance' and 'assistance', but they are not to be used to support a different approach to the sense in which circumstances must be 'special' for the discretion to remand on bail to arise.
54 It follows that the magistrate applied the correct legal approach when dealing with the evidence relevant only to the real risk of flight.
Issue 2: All circumstances in combination
55 The claim advanced before the magistrate was to the effect that, separately or in combination, 10 enumerated circumstances were special circumstances justifying bail. Those circumstances were expressed in the following terms:
(i) The Applicant has long known of proposed extradition proceedings and has made no effort to avoid them or to escape or flee
(ii) The offences for which the Applicant's extradition is sought are "bailable offences" under the laws of Western Australia and the laws of the United States of America
(iii) The Applicant has lived openly and notoriously under his true name and there has been no concealment of his identity
(iv) There is a serious risk of deterioration of the Applicant's health if he were remanded in custody rather than on bail
(v) The Applicant's family background favours a grant of bail
(vi) The Applicant is not and has never been a fugitive from justice
(vii) There is uncertainty regarding the merits of the request for the Applicant's extradition
(viii) The Applicant is not a flight risk
(ix) The Applicant (i) is a citizen of Australia; (ii) is sought for a crime that occurred (if at all) principally - if not exclusively - in Australia; (iii) would be eligible for bail if charged with a similar offence in Western Australia; and (iv) is not faced with opposition from the United States as to his release on bail
(x) The Applicant (i) has a close-knit family who will seek to ensure his presence at the eventual hearing; (ii) is needed by his family; and (iii) retains no passport
56 The magistrate provided detailed reasons. Prior to addressing the claimed special circumstances, his Honour stated that there were a number of consecutive steps to follow (para 87). The first was stated in terms that 'determining the existence or otherwise of "special circumstances" depends upon the particular facts of the case and the entirety of the circumstances of the Applicant' (para 88). In further developing that point, the magistrate said that 'it is clearly recognised that it is not necessary to establish that any particular circumstance should be regarded as special and that several factors or circumstances in combination can constitute special circumstances justifying bail' (para 90).
57 The second step was stated as follows (para 92):
… if after engaging in the evaluative assessment of the whole of the circumstances and if finding that either singly or in combination circumstances do exist that properly characterised are within the meaning of special circumstances the Applicant must also further satisfied [sic] the condition that there is no real risk of flight.
58 The third step was to consider the exercise of the discretion to make an order for remand on bail and if considered appropriate to do so, on what terms or conditions.
59 Then the consideration of the circumstances by the magistrate began by restating the submission for Mr Tsvetnenko that 'singly or in combination' there were special circumstances (para 94). In the reasons that follow there were other references to the need to consider the circumstances alone or in combination (paras 98 and 209).
60 Each enumerated circumstance was considered. As to each, a conclusion was reached to the effect that it was not in itself a special circumstance. As to (iv) which was concerned with the risk of deterioration to the heath of Mr Tsvetnenko, his Honour said that if he was wrong in his view that any deterioration would be no different to that faced by any other person detained as part of extradition proceedings, then his Honour considered it would not be a cogent special circumstance (paras 153 and 163). He also considered 'in combination' the aspects of Mr Tsvetnenko's health relied upon to support the claim of special circumstances (para 162).
61 Many of the matters relied upon went to the issue whether Mr Tsvetnenko was a flight risk and therefore, for reasons already given, were not to be brought to account as part of a combined assessment. Others (especially (ix) and (x)) were themselves a combination of factors that were considered together and not accepted as special. By way of conclusion, the magistrate stated:
… there is no bright line principle governing the assessment in my judgement [of whether] the individual circumstances that exist either singly or in any combination are special circumstances. Given the submissions made I make clear none of the matters asserted would be sufficient, individually or compendiously in some combination thereof that would warrant a grant of bail.
62 The test to be applied was correctly stated. Where, as here, it was necessary to evaluate whether each of the enumerated factors had actually been established and to consider a submission advanced that each of those factors was itself a special circumstance, it is understandable that the magistrate would go through the enumerated list. Having done so, the magistrate was fully appraised of all the circumstances and able to reach a conclusion as to whether all of them taken together (excluding those that went to risk of flight) meant that there were special circumstances. Therefore, it could not be inferred, as was submitted for Mr Tsvetnenko, that there was a failure to undertake that task despite the repeated statements recognising that aspect of what had to be considered and the express terms in which the magistrate's conclusion was expressed.
Issue 3: Guidance from the United States cases
63 In the course of dealing with what constitutes special circumstances, the magistrate stated (para 83):
At this level of decision making I accept it is unnecessary nor appropriate to definitively reach any concluded opinion whether it is necessary or appropriate to have regard to the United States cases.
64 For Mr Tsvetnenko it was submitted that this statement meant that the approach of the magistrate manifested an error of law. It was said to be a rejection of the United States jurisprudence, in particular a view said to have been expressed in those cases that the availability of bail in both jurisdictions may be a special circumstance.
65 No attempt was made to articulate how an error of that kind might be a jurisdictional error having regard to the matters addressed earlier in these reasons. It was not enough to simply argue that there were United States cases that expressed a different view as to what may be a special circumstance. The law to be applied in Australia was to the effect that such cases afforded guidance. They were not to be followed or applied as if they expressed Australian law or decisions as to what may constitute special circumstances. The High Court in Cabal expressly contemplated that the Federal Court would undertake that task. Significantly, the magistrate's decision is replete with reference to the Federal Court decisions and no issue was taken with that aspect of the reasoning.
66 In any event, the reasons of the magistrate must be considered as a whole. They do not manifest a disregard of the guidance that might be afforded by the United States cases. The magistrate went on after the passage quoted above to state provisionally (subject to the law stated in Cabal) that it was permissible to have regard to and be guided to some extent as to what may constitute special circumstances by the United States cases (para 84). His Honour said (correctly) that all the cases were just examples of when United States courts have concluded on specific factual circumstances that there has or has not existed special circumstances (para 85). That is precisely how the High Court dealt with the cases in Cabal when reviewing the two categories. The magistrate referred to United States cases throughout the reasons (paras 119, 134, 148, 166, 175, 188, 189 and 198).
67 On the specific point concerning the relevance of the availability of bail in both jurisdictions for offences of the kind the subject of the extradition proceedings, the magistrate referred to United States authority where the possibility of bail in the country to which extradition was sought may be considered in combination with other factors as contributing to a finding of special circumstances. His Honour noted that there was no reference to Australian authority to the same effect. Then, his Honour stated (para 122) that whether the charged offences are bailable in Australia does not go to special circumstances because in Cabal the emphasis was upon the different rule to be applied when it came to bail pending extradition (where the general rule was that persons were to be held in custody) compared to bail where a person was to be tried in Australia.
68 In Cabal itself the High Court concluded that the harsh circumstances in which Mr Cabal had been detained for thirty-one months constituted special circumstances. However, other matters referred to by Kirby J 'were not special circumstances': at . Those matters included the fact that Mexican courts could admit Mr Cabal to bail and the willingness of Australian citizens of good character to act as sureties: at . Also, the High Court went to some lengths to emphasise that the approach to bail pending extradition was not to be guided by the approach to bail pending trial when it came to reaching a conclusion as to whether there were special circumstances. To conclude that the fact that bail may be available if a person was to submit to trial in the other jurisdiction was a matter that was relevant in determining whether there were exceptional circumstances would be to adopt an approach that was inconsistent with the fundamental principles stated by the High Court.
69 Therefore, it has not been demonstrated that there was an error of law in the approach adopted by the magistrate when dealing with the United States decisions. Even if the error of law had been demonstrated it is highly questionable whether the error would have been one which could be said to have taken the magistrate away from undertaking the required statutory task in the sense described in Craig and Yusuf, being the way in which the case was advanced before the primary judge and on appeal.
Issue 4: Unreasonableness as to risk of flight and deterioration in health
70 As to review for unreasonableness, as noted above, statutory discretionary powers of administrative decision-makers are subject to a presumption that the power is to be exercised reasonably in accordance with the conceptions of the general law: SZVFW at , , , , , . However, the Court must not stray into evaluating for itself how a discretion entrusted to a statutory decision-maker should be exercised. Therefore, the test as to whether a decision is unreasonable and therefore beyond power is 'necessarily stringent' (SZVFW at , Kiefel CJ), 'extremely confined' (at , Gageler J adopting the language of Brennan J in Attorney-General (NSW) v Quin  HCA 21; (1990) 170 CLR 1 at 36), 'in the realm of the extraordinary' (at , Gageler J) and is expressed in 'strong terms' (at , Edelman J).
71 Where, as here, it is claimed that there was error by a primary judge in reaching a conclusion as to whether there was a jurisdictional failure to conform to a statutory requirement of reasonableness, the question admits only of a singular answer. The case should not be approached in the same way as where there is an exercise of discretion by the primary judge. The question whether the decision of the magistrate was legally unreasonable must be determined by this Court on appeal for itself rather than to defer to what was held by the primary judge: SZVFW at  (Kiefel CJ),  (Gageler J), - (Nettle and Gordon JJ) and - (Edelman J).
72 The claim of unreasonableness focussed upon two aspects of the magistrate's reasoning. First, the reasoning that there was a real risk of flight. Second, that there was no likely deterioration in the health of Mr Tsvetnenko if he was detained in custody.
73 As to risk of flight it was submitted that there was no evidence to support the magistrate's finding that there was a real risk of flight. The reasoning of the magistrate was characterised in submissions as speculation.
74 These submissions fail to recognise that it was for Mr Tsvetnenko to persuade the magistrate that the discretion should be exercised in favour of the grant of bail and to do so he needed to establish to the satisfaction of the magistrate that there was no real risk of flight.
75 The magistrate accepted some of the factual matters advanced for Mr Tsvetnenko on the question whether there was a real risk of bail. The magistrate's reasons disclose that the following matters were brought to account in concluding that there was an actual risk of flight which the magistrate would not assess as being 'very low':
(1) the history and character of Mr Tsvetnenko and the potential punishment he may face if tried and convicted were more reliable guides to assessing the risk of flight (para 216);
(2) it was to be inferred that Mr Tsvetnenko must appreciate that if he were tried and convicted of any of the charges preferred against him he could potentially be imprisoned for a substantial period of time outside Australia where his children and loved ones normally lived (para 218);
(3) Mr Tsvetnenko is no stranger to travelling abroad (para 219);
(4) an inference is to be drawn that Mr Tsvetnenko has access to financial means to fund any international travel (para 220); and
(5) Mr Tsvetnenko holds a current Russian passport which could be used to enter Russia, a country with which the United States has no extradition treaty (para 224);
76 An attempt was made to argue that there was no basis for the inference at (4). However, the magistrate did refer to the material relied upon for the inference so it could not be said that there was no basis for the inference.
77 There is no merit to the claim that the magistrate's decision as to risk of flight lacked an evident and intelligible justification.
78 As to the medical condition of Mr Tsvetnenko, as already noted, the High Court in Cabal at  identified imprisonment causing a serious deterioration of health as a special circumstance. So, if there was unreasonableness in reaching a conclusion about that matter then that, of itself, would mean there had been an error which infected the conclusion that there were no special circumstances.
79 Mr Tsvetnenko said that being held in custody would affect his mental health. The magistrate accepted (at para 153) 'that if [Mr Tsvetnenko] remains in custody and [does] not receive psychological support that he will require there is likely to be an increase in his level [of] anxiety and depression'. However a deterioration in health of that kind was found by the magistrate to be no different to that faced by others as a result of being held in custody in the course of extradition proceedings.
80 Mr Tsvetnenko also said that there would be deterioration in his health because of his need for hydrotherapy treatment for a disc problem with his back which treatment was not available in prison. The magistrate considered the medical evidence as to that matter. His Honour concluded that having regard to the treatment that would be available in custody Mr Tsvetnenko had not shown that due to his disc problem his medical situation was such that it would rise to a threshold where the magistrate was satisfied that there would be a serious deterioration in his health (paras 161-162). This was a conclusion reasoned by reference to the evidence in respect of a factual matter that was entrusted to the magistrate to evaluate. As cogent reasons were given for the conclusion it has not been shown that it was outside the bounds of reasonableness.
Issue 5: The finding that bail should not be granted 'in any event'
81 Having found that there were no special circumstances and there was a real risk of flight, the magistrate concluded his reasons by stating (para 233):
For completeness, if my assessments that there are no special circumstances and risk of [f]light are thought to be both incorrect I have nevertheless reflected carefully over the competing relevant considerations and I make clear that my mind has been driven to conclude that bail is not properly to be granted to the Applicant in the exercise of my discretion in any event.
82 It was contended that these reasons manifested the exercise of 'an unlawful and unfettered discretionary power to refuse bail without any evident or intelligible justification' because there was no basis for refusing bail if there were special circumstances and no real risk of flight. The claim made was properly characterised by the primary judge as a claim of unreasonableness. The formulation 'without any evident or intelligible justification' reflects the language used by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li  HCA 18; (2013) 249 CLR 332 at  to describe a decision that was reviewable for legal unreasonableness because, though reasons had been provided, it was not possible for the Court to comprehend how the decision was arrived at.
83 Unreasonableness as a ground of review is concerned with whether an implied statutory standard as to the character of the decision to be made in the exercise of power has been satisfied. Unreasonableness may be demonstrated by showing that the result is unreasonable or by showing that the reasons do not provide an intelligible justification for the result (see the review of the authorities in Minister for Immigration and Border Protection v Haq  FCAFC 7 at - (Colvin J)).
84 However, unreasonableness is not demonstrated merely by an error in reasoning, even an error that may be characterised as grave. Where the claim of unreasonableness is based on alleged unreasonable reasoning it must be demonstrated that the reasons fail to provide an intelligible justification for the result.
85 The distinction is important because review for legal unreasonableness concerns the overall character of an administrative decision. Erroneous or illogical reasoning at a particular point in the decision-making process may or may not lead to the conclusion that the decision as a whole fails to conform to the implied statutory standard of reasonableness.
86 In this case, the relevant part of the magistrate's reasons came at the end of a set of detailed reasons that otherwise expressed the basis for two separate conclusions each of which provide a complete and proper foundation for the decision, namely there are no special circumstances and there is a real risk of flight. Each of those two conclusions is a full and sufficient reason for the refusal of bail. The conclusion as to special circumstances means that bail must be refused and the conclusion as to risk of flight means that bail must be refused unless the risk is slight and the case rises to meet the 'most extraordinary' description given by the High Court.
87 Further, there is no indication or possibility that the additional reasons provided at the end of the decision infected in any way the two separate conclusions reached in the earlier detailed reasons.
88 For Mr Tsvetnenko (apart from the claim that has been rejected in dealing with Issue 4) no attempt was made to demonstrate that there was unreasonableness in the reasoning to support the conclusions that there were no special circumstances and that there was a real risk of flight. To the extent that a submission was made that there was unreasonableness in the result, that too depended upon the matters that have been rejected in dealing with Issue 4.
89 In those circumstances, the provision by the magistrate of the additional reason at para 233 (quoted at  above) even if unreasonable in the sense that it lacked any evident or intelligible justification could not make the decision itself unreasonable in the requisite sense.
90 It is important to note that this is not a case where the jurisdictional error is said to lie in the failure to meet a statutory requirement to provide reasons of a particular standard. This is not a case where there was a procedural obligation to provide reasons. The Extradition Act did not require reasons and in the absence of statutory provision there was no right to them from a statutory decision-maker: Wingfoot Australia Partners Pty Ltd v Kocak  HCA 43; (2013) 252 CLR 480 at .
91 Nor is there a suggestion that there was some other procedural unfairness in the process. In such instances there are uncertainties in evaluating what might have occurred if the proper process had been followed which requires the Court to evaluate whether the error could have produced a different result before it can be concluded that it was jurisdictional: EVS17 v Minister for Immigration and Border Protection  FCAFC 20 at . As to the development of the law in relation to the circumstances where an identified failure to accord procedural fairness may result in jurisdictional error see the reasons of Mortimer J in DPI17 v Minister for Home Affairs  FCAFC 43 at -.
92 Where the jurisdictional error is of a kind other than unreasonableness then issues of materiality fall for consideration once the alleged error has been identified. So, an error of law of the kind described above or a failure to take into account a consideration that is required to be taken into account or the bringing to account of a matter that is irrelevant or extraneous will establish an error that will be jurisdictional only if it is material in the sense explained in Hossain and Minister for Immigration and Border Protection v SZMTA  HCA 3.
93 As to materiality, in SZMTA, Bell, Gageler and Keane JJ said at -:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
94 However, in the case of a claim that the decision was unreasonable by reason of the character of the reasoning advanced to support the decision, it will be necessary to consider whether the decision was 'materially affected by unreasonableness': SZVFW at  (Gageler J). This reflects the need to consider whether the decision (not simply the reasoning) was unreasonable in the requisite sense, namely because the decision was unreasonable (when evaluated by considering the result or the reasoning process supporting the decision). An immaterial respect in which the reasoning is 'without any evident or intelligible justification' does not make the decision unreasonable in a jurisdictional sense. In such an instance, the decision as a whole still conforms to the implied standard of reasonableness.
95 As was made clear in SZVFW, a question as to whether an administrative decision is unreasonable in a jurisdictional sense is a legal one which though evaluative in character is capable of only one correct answer: at  (Kiefel J), - (Gageler J), , - (Nettle and Gordon JJ) and - (Edelman J).
96 Having regard to the nature of the review ground, it is illogical to speak of the extent of non-compliance with an implied obligation to make a decision that is reasonable. It is not possible to conceive of an instance in which it might be demonstrated that the decision itself is unreasonable, but not in a material way. Rather, in a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.
97 So, in CGA15 v Minister for Home Affairs  FCAFC 46, the Court (Murphy, Mortimer and O'Callaghan JJ) was concerned with whether an error by a tribunal in statistical analysis was jurisdictional. Citing Hossain and SZMTA, the Court stated at :
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.
98 The Court then found that the error in statistical analysis was material to the tribunal's decision because it was one of three reasons underpinning its conclusion on an issue that had to be determined in the exercise of the decision-making power and it could be safely inferred that the analysis materially contributed to the tribunal's conclusion: at .
99 In DPI17, Griffiths and Steward JJ first concluded that certain aspects of the reasoning of the administrative decision-maker were legally unreasonable because the failure to consider certain matters was unreasonable or plainly unjust: at . Then, consideration was given by their Honours to whether that error was material and involved jurisdictional error: at . It was found that the error was material because the ultimate decision might have been different if the matters had been considered: at . Expressed in that way their Honours recognised that the conclusion of unreasonableness depends upon demonstrating that there was an effect on the result.
100 Mortimer J adopted a different path in reaching a similar conclusion. In the course of doing so her Honour expressed the following view at  (having noted that reasonableness is an implied condition on an exercise of statutory power):
However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of "materiality", before being able to characterise the error as jurisdictional in character.
101 For reasons already given the error alleged in this case was not of a kind that could support a conclusion that the decision by the magistrate was legally unreasonable. For that reason the matters raised by Issue 5, even if established, could not demonstrate error by the primary judge. In reaching that conclusion it is not necessary to express any view about whether the primary judge was correct to conclude that the reasoning by the magistrate at para 233 of his reasons (quoted at  above) could be described as being without any evident or intelligible justification. The question was not whether para 233 had that character but rather whether the decision of the magistrate to refuse to grant bail had that character. A defect in the reasoning at para 233 could never be sufficiently material to provide the foundation for a conclusion that the decision of the magistrate was unreasonable.
Conclusion and costs
102 Therefore, each of the grounds of appeal should not be upheld and the appeal should be dismissed. The usual order as to costs would follow that event. No submission was advanced to the contrary. So, the appeal should be dismissed with costs.