(4.5) JR OF LAW MAKING - DECISIONAL GROUNDS OF REVIEW (Errors of Law in Fact Finding))

Question 1

What is the tricky issue here

Answer 1

how to distinguish between errors of law, which are reviewable and errors of fact, which in most cases are not

Question 2

Are errors of fact reviewable?

Answer 2

No - mot reviewable even if manifestly illogical/perverse (Azzopardi)

Question 3

If statute uses words per their ordinary meaning and the question is whether facts fall within those words, where it is reasonably open to hold that the facts do –> question of fact or law?

Answer 3

this question is one of fact (Hope) –> errors in the fact finding stage

Question 4

Mistaken conclusion of fact (not the actual fact finding) is

Answer 4

an error of law (Craig suggests this)

Question 5

What constitutes an error of law?

Answer 5

Where there is uncertainty as to the meaning of a statutory word or expression, the process of construction raises a question of law (May)

Question 6

Under AAT Act why are errors of law important?

Answer 6

Relevant bc they’re a requirement of an appeal, ie to appeal on a Q of law per s 44 AAT Act

Question 7

Is an error of law a ground of review?

Answer 7

Yes - s 5(1)(f) ADJR Act (and at CL an error of law may be a jurisdictional error)

Question 8

Per Enfield, how do Australian courts approach questions of law?

Answer 8

they don’t defer to administrators on Qs of law, even Qs of law regarding meaning of statute

Question 9

Per Enfield some questions about statutory meaning are classified as

Answer 9

questions of fact – these are questions for the primary decision-maker, subject to judicial review only for unreasonableness (this is not a product of any doctrine of deference)

Question 10

Per Collector of Customs, the question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is

Answer 10

a question of law

Question 11

Per Collector of Customs, the ordinary meaning of a word or its non-legal technical meaning is

Answer 11

a question of fact (question of law when it has a technical legal meaning)

Question 12

Per Collector of Customs, meaning of a technical legal term is

Answer 12

a question of law

Question 13

Per Collector of Customs, the effect or construction of a term is

Answer 13

a question of law

Question 14

Per Collector of Customs, the question whether facts fully found fall within the provision of a statutory enactment properly construed is generally

Answer 14

a question of law

Question 15

Enfield rejected

Answer 15

rejected US deference to agency interpretation of regulatory statutes

• Courts cannot defer to administrator’s opinions on matters of law

Question 16

Per Enfield, administrators may determine

Answer 16

the discretionary aspects of the decision – these go to the merits (but interpretation of law isn’t a discretionary matter, at least not a matter of administrative discretion)

Question 17

Facts in May v Military Rehabilitation and Compensation Commission (2015)

Answer 17

• May was in the Royal Australian Air Force for 6 years
• He had a series of vaccinations and claimed that he started to feel vertigo like symptoms
• Claimed workers comp
• question of whether injury involved a question of fact?

Question 18

Outcome in May v Military Rehabilitation and Compensation Commission (2015) - did the meaning of “injury” involve a question of fact?

Answer 18

Yes – “injury” is not a word having “merely or only” its ordinary meaning. It is a statutory concept and requires constructional choices – there is a level of indeterminacy here that courts must resolve

Question 19

What statutory interpretation occurred in R v Connell (1944) - under war-time regulations, a local industrial authority’s power to raise rates of pay was contingent on the authority being satisfied that current rates are anamolous

Answer 19

HCA held that the authority had acted on incorrect understanding of “anomalous” – opinion was not properly formed

Question 20

What statutory interpretation occurred in Wilkie v Cth [2017] re marriage equality plebiscite, using a standing ‘ad hoc’ power to appropriate for a specific unbudgeted expenditure if the Minister is satisfied there is an ‘urgent need’ / ‘unforeseen’

Answer 20

Minister had acted on correct understanding of ‘urgent need’ or ‘unforeseen’
- The urgent need was commitment to get people’s views before creating marriage equality legislation

Question 21

[Error of Jurisdictional Fact] - although typically a mere error in a finding of fact will be insufficient to establish a ground for judicial review, where a decision has been infected by an error in relation to a ‘jurisdictional’ fact, the decision will be

Answer 21

reviewable (ADJR s 5(3)(b)); (Enfield; SZMDS at CL)

Question 22

[Error of Jurisdictional Fact] - objective jurisdictional fact

Answer 22

Fact which must exist objectively before DM is empowered to decide

Question 23

[Error of Jurisdictional Fact] - subjective jurisdictional fact

Answer 23

Fact which in DM’s subjective opinion, must exist before DM is empowered to decide

Question 24

[Error of Jurisdictional Fact] - objective jurisdictional fact –> What question will reviewing court ask?

Answer 24

Did the fact exist?

Question 25

[Error of Jurisdictional Fact] - Subjective jurisdictional fact –> What question will reviewing court ask?

Answer 25

Was the DM’s conclusion as to the existence of the fact rational and logical? (similar test to unreasonableness in Li/Wednesbury)

Question 26

[Error of Jurisdictional Fact] - objective jurisdictional fact is a condition

Answer 26

precedent to the jurisdiction the existence of the fact is necessary for the making of a valid decision.

Question 27

[Error of Jurisdictional Fact] Objective jurisdiction facts must be

Answer 27

objectively and independently established by the reviewing court on the evidence admitted in that court (court must engage in fact finding to determine if facts objectively exist) (Enfield).

Question 28

[Error of Jurisdictional Fact] - Whether a fact is an ‘objective’ jurisdictional fact is a question of

Answer 28

statutory interpretation.

Question 29

[Error of Jurisdictional Fact] What factors point towards an objective jurisdictional fact?

Answer 29

‘preliminary’ or ‘ancillary’ to the exercise of statutory power in the provision (Timbarra)

Question 30

[Error of Jurisdictional Fact] Facts in Enfield (2000)

Answer 30

Council applied to restrain Enfield’s development, arguing that the Commission needed Council’s concurrence to grant the consent –> statute must be granted unless was a ‘non-complying development’

Question 31

[Error of Jurisdictional Fact] Outcome in Enfield (2000) - is the question whether development is ‘non-complying’ an objective jurisdictional fact?

Answer 31

Yes –>

• Characterisation of the proposed development as “special industry” was a jurisdictional fact
• It was an objective fact that either did or did not exist, it was either special industry or it was general industry – whether it was or not was a matter for the court as it is not a matter of opinion.

here was an enlivening condition - a precondition to the exercise of discretion

Question 32

[Error of Jurisdictional Fact] - facts in Timbarra Protection Coalition Inc v Ross Mining NL (1999)

Answer 32

Timbarra sought JR of development approval, arguing application was invalid bc didn’t have species impact statement - bc conclusion that no species would be threatened was incorrect (ie it was a JF that needed to be determined)

Question 33

[Error of Jurisdictional Fact] - Per Timbarra, for objective jurisdictional facts, a court exercising judicial review can

Answer 33

receive evidence and decide for itself whether or not the fact exists

Question 34

[Error of Jurisdictional Fact] - outcome in Timbarra Protection Coalition Inc v Ross Mining NL (1999)

Answer 34

Was a jurisdictional fact

Question 35

[Error of Jurisdictional Fact] - Timbarra (1999) where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires

Answer 35

a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts’

Question 36

[Error of Jurisdictional Fact] - subjective jurisdictional fact where

Answer 36

must be satisfied or of the opinion/belief

Question 37

[Error of Jurisdictional Fact] - SJF = In situations where a statutory power is expressly conditioned upon the formation of a particular state of mind of the decision maker, the existence of that state of mind will be

Answer 37

reviewable by the courts as a jurisdictional fact of a ‘special kind’ (M70 v MIC)

Question 38

One of the features of judicial review is that we have multiple supervisory jurisdictions to enforce a common set of legal norms. In some contexts, a court can grant a remedy for any error of law whilst in others

Answer 38

it’s required to establish a JE.

Question 39

Establishing an error of law is sufficient for

Answer 39

(1) appeals on Qs of law
(2) order for review under ADJR Act esp s 5(1)(f)
(3) certiorari for error of law on face of the record

Question 40

Jurisdictional error is required

Answer 40

a. To engage the constitutionally entrenched measure for judicial review, eg, if there is a privative clause that excludes non-entrenched review
b. For mandamus, prohibition or certiorari for jurisdictional error

Question 41

When can mere legal errors be bumped up to jurisdictional errors by a SJF?

Answer 41

if they affect a jurisdictional task for the DM by the statute (eg Haritos)

Question 42

legal errors in fact-finding can be ‘bumped up’ to jurisdictional errors if they

Answer 42

affect the formation of an opinion that is expressly required by the statue as a ‘subjective jurisdictional fact’ (Stevedoring)

Question 43

[Illogicality or irrationality] - what can constitute an error of law?

Answer 43

Illogical or irrational finding of fact that is material to an administrative decisions (Haritos; SZMDS)

Question 44

Per SZMDS when can an error of law on the basis of illogicality or irrationality be established?

Answer 44

1. There is no probative material on which to base the conclusion;
2. There is only one conclusion open on the evidence, and the DM has not come to that conclusion
3. The DM’s conclusion is ‘simply not open on the evidence’

Question 45

If illogicality or irrationality relation to a subjective/objective jurisdictional fact, then

Answer 45

jurisdictional error

Question 46

What’s the leading case for threshold or irrationality and illogicality

Answer 46

SZMDS (2010)

Question 47

Facts in SZMDS (2010)

Answer 47

• SZMDS was in Australia on a visitor’s visa and applied for a protection visa on grounds that as a homosexual, he would be discriminated against if returned to Pakistan
• Had been to UAE - 2 relos w guys there, went back to Pakistan
• RRT rejected claim on basis that if he truly had fear he wouldn’t have gone back (ie should also have applied for refugee status in UK when was there)

Question 48

Outcome in SZMDS (2010) Was the RRT’s rejection of SZMDS’ claim that he had been in the relo with 2 men in UAE ‘illogical’?

Answer 48

No –> wasn’t unintelligible, decision was upheld

• On the material before the RRT – a rational DM could have come to the conclusion that SZMDS did not have the relationship in UEA that he claimed.

Question 49

Per SZMDS, to be irrational or illogical to constitute a JE what is required

Answer 49

Required belief, satisfaction or opinion does not exist if based on:
o (a) legal errors (irrelevant considerations etc); or
o (b) seriously illogical/irrational reasoning

Question 50

What case extended the ground of irrationality?

Answer 50

Haritos v FCT (2015)

Question 51

Facts in Haritos v FCT (2015)

Answer 51

• tax assessment of Haritos’ cleaning company –> appealled to AAT
• wrt issues about how payments to subcontractors should be treated
• AAT refused to accept Haritos’ evidence bc argued it derived from tainted source

Question 52

Outcome in Haritos v FCT (2015) whether an irrational or illogical fact finding process is even something a court can review when it’s an appeal on a Q of law / whether the AAT’s reasoning process in respect of those expert witnesses was in fact illogical or irrational – lacking a basis of findings and inferences of facts that can give logical support to findings or conclusions of the DM

Answer 52

found that AAT had made a material error of law in finding that a cleaning company had not incurred certain expenses the business had claimed in its income ta assessment. ‘

Whilst AAT had sound reasons to decided it could not accept evidence w/ corroboration, it’s reasons for not placing any weight on evidence provided by one expert witness were illogical

Question 53

Section 5(1)(h) of the ADJR Act provides a ground of review in relation to

Answer 53

where ‘there was no evidence or other material to justify the making of a decision’ (+ also see s 5(3))

Question 54

At CL, the “no evidence” ground of review may be made out where a DM had

Answer 54

no evidence to make a factual finding and that finding justified a conclusion from the decision, subsequently leading the decision maker to misconceive their jurisdiction (Waterford)

Question 55

[No evidence] - facts in Australian Stevedoring (1953)

Answer 55

Stevedoring Board empowered to cancel/suspend licence “if satisfied” per the provision

• Board opened inquiry into Company’s licence, based on 2 incidents where workers were absent without leave – in one case mistaken entries in the time book; in the other the worker was absent for 15 minutes

Question 56

[No evidence] - outcome in Australian Stevedoring (1953)

Answer 56

• These 2 instances of record keeping error are not probative at all
• no evidence on which the Board could be satisfied of any of the statutory criteria for suspending or cancelling the applicant company’s registration as an employer of stevedore workers.

Question 57

[No evidence] - facts in Viane [2021]

Answer 57

• Viane arrived in Aus when 14, under special category visa, later convicted of numerous offences - minister cancelled visa –> had to go back to Samoa
• Cancellation required that Minister be satisfied they don’t pass character test
• argued that despite some subs made by Viane, there was no evidence for decision and Minister had made a JE

Question 58

[No evidence] - outcome in Viane [2021]

Answer 58

No evidence means “not a skerrick of evidence” – here Minister wasn’t prohibited from using the accumulated knowledge of the Department. Secondly, representations may be received which are no more than bare assertions about a course of future events. The Minister may simply not be persuaded that such assertions can constitute “another reason” for revocation. Such a conclusion does not require the Minister to make any factual findings.

Question 59

[No evidence] - in Holden (2014) did DM’s failure to identify evidence for a finding in their written reasons establish a ‘no evidence ground’?

Answer 59

No it doesn’t

Question 60

[No evidence] - facts in Holden (2014)

Answer 60

Here AAT found Holden had PTSD, written reasons did not point to any evidence to support its conclusion that he head suffered from PTSD requiring clinical management.

• There was material before the AAT which could rationally support the finding.

Question 61

[No evidence] - outcome in Holden (2014)

Answer 61

• The “no evidence” error arises if there is no foundation in the material capable of supporting the finding. That was satisfied here.

o The AAT failed to fulfil statutory duty to give reasons – this was a legal error.

Question 62

[No evidence] - facts in Splendido (2019)

Answer 62

• Decision to cancel Splendido’s visa under s 501 of the Migration Act due to not passing the character test (had extensive crim record relating to drug possession) –> 46, had been in Oz since 3 yrs old
• The Minister’s reasons referred to there being an “unacceptable risk of harm to the Australian community” –> TJ held this wasn’t the case no skerrick of evidence here

Question 63

[No evidence] - outcome in Splendido (2019) –> Whether the Ministerial discretion (exercisable in the national interest) was exercised lawfully

Answer 63

• The TJ was correct that the Minister had no evidence for his finding that Splendido was a risk to the Australian community
• In this case, the decision was based on speculation, guesswork or assumptions – rather than on probative evidence
• The case makes clear that the distinction made in Melbourne Stevedoring continues being operative