Fact-Finding Errors - - No evidence – there is a distinction between: o The common law; and o The ADJR Act Jurisdictional fact No evidence – common law [slide 2] - - - Two conditions o The allegations of no evidence must relate to a matter upon which the exercise of power depends (essential statutory element) DM has made a mistake assessing the facts, won’t have a result that a decision can be challenged on the no evidence grounds because the courts have regard to the identification of facts as the merits of a decision reflected in the common law ground of review related to no evidence which has a very high threshold as a result. If there is no evidence on which the DM can base the decision and that evidence is essential for the making of the decision, then it will also be unreasonable. How can you plausibly and reasonably make a decision w/o supporting evidence. Slide 3 – Stevedoring industry board - - Legislation had come about because of corruption on the docks with unions even putting random people on the books Random inspections from police. If people that were listed on the sheet were not there, then something was up. In this case, there had been 4 absences without permission. They commenced an inquiry to determine if the MSC license should be suspended. 3 of the 4 absentees could be explained and did not result in delays. MSC claimed that it could explain the absences and therefore no reason for the board to continue investigation. Issues: o Is a small amount of evidence enough to launch a successful claim of no evidence? o Can the no evidence ground apply where it all depends on the opinion of the investigating authority HCA o No evidence ground could apply in circumstances involving opinion o Chief difficulty lies in the distinction between on the one hand near insufficiency of evidence and other material to support a conclusion of fact when the function of finding the fact has been given to the tribunal and on the other hand, the absence of any foundation in fact. o The inadequacy of material is not in of itself a ground for prohibition. Needs to be an absence of material. Not simply inadequate or insufficient material for the ground of no evidence to be successfully made out. o Court was literal with its view – no evidence means no evidence, not a little bit of evidence. o HCA distinguished between final decision and decision to conduct an inquiry. Generally it would be reluctant to intervene in an early stage as it is possible that the evidence from the inquiry would result in no cancellaion or suspension, or that decision could be challenged then. o In this instance HCA was willing to intervene at early stage. Slide 4 - - - S 5(3)(a) > phrased similarly to common law no evidence ground o Particular matter was established = essential statutory element (must relate to a matter upon which an exercise of power depends). o From which he or she could reasonably be satisfied that the matter was established…> less strict than the common law. Would allow ground to be made out if there was a little bit of evidence, if on that evidence could not be satisfied that the matter was established. Do not need to show ‘no evidence’ just no evidence that the DM could be satisfied. S 5(3)(b) > no common law equivalent o Does not need to be an essential statutory element upon which the exercise of DM power depends o Instead talks about a decision which is based on the existence of a particular fact and that fact does not exist. o Eg based decision on the fact individual has been convicted of criminal offence where they have not been. o In practice, must disprove the facts to show this ground. 2 fold requirement.first must show that the DM based their decision on the existence of the fact. And (2) that the fact was wrong. Hard to show that a fact positively does not exist, as opposed to the common law requirement that there is an absence of a fact. Therefore harder to make out than common law. In effective (a) the legislation makes the fact critical to the decision, and in (b) the DM makes the fact critical to the decision. Slide 5 – ABC v Bond (3(a)) ground - - Mason CJ o No evidence ground of JR is read strictly because fact review is generally what happens in the AAT o No evidence ground is a small exception to this fact review o Courts do not want to intrude on merits review o Some basis for an inference > if there is a little bit of evidence then you cant challenge a decision for JR under this ground o No evidence in s 5(3)(a) is similar to the common law ground of no evidence but it overcomes some of the limitations of the common law ground because it only requires that there was no evidence that the DM could be reasonably satisfied. o Mason CJ did not clarify what happens if the little bit of evidence is really bad. Would that effectively mean that there is no evidence (because can’t infer anything from it)? Deane J – probative evidence: Looking at the quality of the material as well, however this has not taken off in courts and this is largely because it is a bit like merits review Slide 6 – Minister for immigration & multicultural affairs… (3(b)) ground) - Doctor applied for protections visas on the grounds that he had a well founded fear of persecution by the SL authorities Applications rejected, appealed to review tribunal, rejected Review tribunal based decision on 8 factors, conceded that 2 of the 8 factors did not exist Seek JR on grounds of no evidence HCA – unsuccessful o Gaudron & McHugh JJ o Ground of review of (b) could not be relied upon with re to any fact taken account in the DM processing. The word particular indicates that it was intended to have a more limited operation. o The paragraph needs to be understood as referring to a finding of fact w/o which the decision in question either could not or would not be reached. o It followed that unless it was possible that in the absence of a particular fact the decision would not have been made ,then the ground ofreview in (b) could not be made out. Must be fact critical to the making of the decision. o But for the existence of a particular fact, the decision would not have been made. o There was still 6 other facors upon which the tribunal could have doubted Rajamanikkam’s persecution. Jurisdictional Fact The jurisdictional fact concept - - - Not just any old fact Can only deport someone if they are non-citizen o Jurisdictional fact: They are a non-citizen When it is a matter of a DM opinion, it is much harder to establish that a factual precondition does not exist (subjective jurisdictional fact) o The more the legislation expressly ties the existence of the jurisdictional fact to the opinion of the DM, the more latitude the court will give to the DM in regard to the jurisdictional fact o Court can still review a decision based on subjective JF, otherwise would be problematic Resembles absence of power ground of review o Don’t have the power to make the decision because the factual pre-condition does not exist o And no evidence 5(3)(a) Timbarra Protection Coalition v Ross Mining - - Involves subjective jurisdictional fact Application of extension and modifications of mines were approve dby local council and the assessment act required that application must be accompanied by a species impact statement if development likely to effect threatened specieis or habitat Council had to be SATISFIED that the development would not significantly effect threatened species - - Application did not include impact statement and council had not required one. Rather, council relied on advice from director of services that it would not effect threatened species. Application approved. Timbarra sought to challenge application alleging that the dev would effect various threatened species Talbot J dismissed Timbarras application on the basis that it was part of councils job to see if an impact statement was required, not a jurisdictional fact. Appealed to COA o Was a jurisdictional fact o This was determined by a process of statutory construction o Once the court has looked at the factual reference and decided it was a jurisdictional fact, then it is also up to the court to determine whether the fact exists o Number of factors relevant to determine if a factor is a jurisdictional fact o General application factors: Whether existence of fact was a precondition to the exercise of power Whether the existence of the fact was based on the opinion or belief of DM (if opinion, this would weigh against it being a jurisdictional fact but the opinion of DM rather than the matter itself could be a jurisdicitional fact) Look at where the factual reference appeared. If it appeared as part of the statutory formulation of power, than it would be less likely to be a jurisdictional fact. If it was preliminary or ancillary to the exercise of power, then it would be more likely to be a jurisdictional fact. Pointed out that the requirement for a species impact statement was part of the development application process, not the approval process, so it came much earlier and therefore weighed in favour of the jurisdictional fact. o Considering all those factors, the decision whether the species impact statement played such a significant role in the legislative scheme, that it was appropriate to describe it as an essential condition and therefore it was a jurisdictional fact. o Because it was a jurisdictional fact, the existence or not of the jurisdictional fact was something the court had to determine for itself. Re Minister for Immigration … Ex parte Applicant s20 - - - HCA found against applicant and drew distinction between Wednesbury unreasonableness, and irrationality and illogicality. Unreasonableness that was excluded by Migration Act was excluded to Wednesbury unreasonableness (did not prevent reviews on the ground of irrationality). When people call things irrational or unreasonable when they disagree w something is not enough. Must show the legal consequences that are created by the error of law, not just that they disagree with merits of decision. Court suggested that a decision can be invlaid on basis of irrational or illogical reasoning or fact finding by DM but it would need to be more serious than poor expression or reasoning. Fact finding would have to be overwhelmingly irrational. Jurisdictional fact – decision could not be reviewed on grounds or unreasonableness but Wednesbury unreasonableness only applied to discretion and not questions of jurisdictional fact. That distinction has been picked up in later cases. Minister for Immigration v SZMDS - - - Majority of HCA confirmed that subjective jurisdictional facts could be reviewed on ground of irrationality (during time where unreasonableness was excluded from ground in migration act) Similar to a complaint that a decision was unjust, arbitrary, capricious, unreasonable. Analogous categories. Subjective jurisdictional fact here was whether DM was satisfied that the applicant was a non-citizen to whom Australia owed protection obligations. HCA found in favour of minister Inferences could be so irrational that they constitute an error of law Drew on idea that different minds looking at same evidence can come to different conclusions and it is quite natural for people to disagree. If reasonable can look at same material and reach a conclusion, if DM has reached one of those conclusions, then it canont be irrational or illogical. Way to think about it: o If DM looked at facts and came to one decision over another about the existence about the existence of a jurisdictional fact, that wont be enough. Was there a reason for reaching that conclusion? If there was and there is a basis for it, it will not be irrational and wont amount to jurisdictional error.
