What is the scope of the jurisdictional error of unreasonableness?
116 Neither party made any submissions as to the scope of the jurisdictional error of unreasonableness save that the appellant asserted, in a general way, that it included illogicality or irrationality at the stage of making findings of fact. There was no submission by Counsel for the Minister to the contrary, and it may be that the Minister accepts that the courts should adopt an expansive view of the concept of unreasonableness and that it applies at all stages of decision making. Whether that be the case or not, the difficulty in the present case is that the alleged unreasonableness does not arise in the exercise of the power, or even a discretion, but in the finding of a fact. That fact being there was no real chance that the appellant would suffer serious harm in Egypt. This raises questions concerning the nature and extent of jurisdictional error arising from erroneous or unreasonable fact finding, and how far the law has developed from the historically orthodox position that a mere error of fact will not justify the quashing of an administrative decision.
117 In "The Final Frontier: The Emergence of Material Error of Fact as a Ground for Judicial Review" by C Forsyth and E Dring in Forsyth C (ed), Effective Judicial Review: A Cornerstone of Good Governance (OUP, 2010) at 245, 246-250, the learned authors identified the essential difficulty with immunizing errors of fact from judicial review is that it can lead to as serious an injustice as an error in the decision making process which underpins the accepted orthodox grounds of review. They observed that where this has occurred and the potential exists for great injustice, the courts have sought to bring the factual error within the accepted grounds of judicial review: see 252-254. In particular, in the United Kingdom, where constitutional restrictions on the examination of executive power are less limiting, there has emerged the concept of "material error of fact" as a ground for judicial review. The authors observed that the position in Australia has been more orthodox and referred to Brennan J's comment in Waterford v Commonwealth (1987) 163 CLR 54 that "there is no error of law simply in making a wrong finding of fact". They also observed that the necessity for an expansion of jurisdictional error to include erroneous fact finding was less in Australia than in the United Kingdom as, here, a person dissatisfied with a governmental decision can obtain full merits review by the Administrative Appeals Tribunal which, at the conclusion of its review, is to make the correct and preferable decision.
118 Whether it be because of the existence of the ability of the Tribunal to undertake full merits review or otherwise, at least as long ago as 1990 the High Court set its face against accepting that an erroneous finding of fact occurring in the course of administrative decision making could give rise to a jurisdictional error. Whilst the court's obligation to ensure the legality of executive action cannot be diminished, where the Parliament has entrusted to the Executive the obligation to ascertain the facts on which it makes its decision, the examination of fact-finding under the guise of unreasonableness has been seen as an impermissible intrusion into the field of merits review. In the oft-cited words of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
119 In the same year in which Quin was decided, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond), the High Court identified the sole ground of jurisdictional error which might arise in relation to administrative fact finding was that of "no evidence", being a ground of review which was incorporated into the Administrative Decisions (Judicial Review) Act 1977 (Cth). Mason CJ said (at 356):
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
Earlier in his reasons, the Chief Justice (at 341) identified this restriction on the scope of review as being an essential, if not constitutional, aspect of the relationship between the judiciary and the Executive:
The expression "judicial review", when applied to the traditional review functions of the superior courts in our system of justice, exercisable by means of the prerogative writs and the grant of declaratory relief and injunction, ordinarily does not extend to findings of fact as such. To expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in relationship between the executive and judicial branches of government.
Where a fact is found in the absence of any material to support it, it necessarily follows that an error in the decision making process authorised by statute has occurred. Where there is some evidential support for a finding, even if it is only slight, it is often said that no jurisdictional error will arise. Despite the decision in Bond, there is some inconsistency as to the scope of the principle in subsequent authorities. In WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 at 264 [11]-[12], the Full Court tended to treat the "no evidence" rule as being confined to the determination of a jurisdictional fact. In SZNKV v Minister for Immigration and Citizenship (2010) 118 ALD 232 at 242-243 [37]-[38], Kenny J stuck with orthodoxy and identified the "no evidence" ground as a jurisdictional error which cannot succeed unless there is "no evidentiary basis at all for the challenged finding", and that if there is a slight evidentiary basis it would follow that the ground could not succeed. The ground was said to possibly extend to where the Tribunal makes a finding which is critical to its conclusion and there is no evidence to support it. To similar effect are the observations of O'Callaghan J in AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [35] and in CHW16 v Minister for Immigration and Border Protection [2017] FCA 762 at [32].
120 Assuming then that the "no evidence" rule is one which gives rise to a jurisdictional error, a distinction must be drawn between a finding of fact for which there is no evidential support on the one hand and, on the other, a finding of fact which is supported by some evidence, albeit slight, but conflicting with significant contrary evidence. The first can be seen to be arbitrary or capricious and lacking in any justification. The second may be seen as a preference for one piece of evidence over other evidence. In the context of curial findings it might be that a preference for one piece of evidence over substantial contrary evidence may be regarded as unreasonable or lacking in logic because the yard stick against which fact finding is done is the balance of probabilities. However, where the power to determine facts is conferred by the Parliament on the Executive, and the determination occurs outside of the processes by which facts are analysed, tested and considered in courts, the preference for some evidence over substantial contrary evidence may be justifiable. Nevertheless, this is one of the points at which errors in factual analysis by an administrative decision-maker generate allegations of unreasonableness.
121 Despite the decision in Bond not having been overturned, in the years which have followed it, judicial review has encroached beyond hitherto limits and more than minimally into the area fact finding. Whilst the "no evidence" ground of judicial review is frequently referred to, more often courts are prepared to accept illogicality or irrationality in the fact finding process as a ground of jurisdictional error or, at least, as disclosing the existence of such an error. This has often occurred by conflating or combining the principles relating to error of jurisdictional fact for illogicality and irrationality with jurisdictional error for unreasonableness. The difficulties encountered in the scope of unreasonableness as a jurisdictional error and the erratic application of that principle to fact finding have been helpfully assayed by E Carroll in her article Scope of Wednesbury unreasonableness: in need of reform? (2007) 14 AJ Admin L 86 at 90-95, although even in that erudite article the distinction between review of a subjective administrative fact and judicial review for jurisdictional error is not always clear. In an article, Finding Fairness in Fact Finding: Material Mistake of Fact Review in Asylum Cases (2019) 26 AJ Admin L 100 at 103-107, E Pearson identified that the characterization of erroneous findings of fact as being symptomatic of unreasonableness, irrationality or illogicality, or a failure to exercise jurisdiction, has especially occurred in migration matters before this Court. It was also observed that several courts have found it is all too easy to "dress up" errors of fact as issues of law. Reference was made to R v Lord President of the Privy Council; Ex parte Page [1993] AC 682, 692, 694; Telcordia Technologies Inc v Telkom SA [2006] 139 SCA (RSA); [2006] ZASCA 112, [74]; McStravick v Western Australia [2001] WASCA 398, [17]. The learned author then observed:
While in England, and other common law jurisdictions herein examined, case law has evolved to rationalise and clarify the circumstances in which a material mistake of fact as a ground of review is available, the case law in Australia with respect to the review of factual findings continues to lack transparency. It is noteworthy that courts have been willing to accept grounds of review that, in essence, agitate material mistake of fact under the guise of irrationality or failure to exercise jurisdiction in circumstances where it would have been profoundly unjust not to do so. This body of case law states that the determination of jurisdictional error should not "be analysed by reference to fixed categories or formulas", such as any jurisdictional/non-jurisdictional distinction between claims and evidence; rather that the "fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error". It can thus be said that the recognition of a material mistake of fact head of review premised broadly on "unfairness", bringing into play concepts of materiality and seriousness, would not represent such a great leap for law in Australia that it would result in confusion. While it may not always be appropriate to apply rigid categories or formulas when determining jurisdictional error, the recognition of the ground would bring much needed transparency, rationality and clarity to Australian law by openly acknowledging the ability to review factual findings in defined circumstances, and providing a clear explanation for the intervention of courts in circumstances where grave errors of fact have been made by a tribunal and it would be profoundly unjust not to intervene.
(footnotes omitted)
122 Whether acceptance of a material mistake of fact as a jurisdictional error is a "great leap" or not is a matter on which reasonable minds will disagree. Nevertheless, given the historically orthodox position and the observations in Quin and Bond, a question arises as to whether it is a step which only the High Court is able to take. That difficult question was considered by Edelman J in Minister for Immigration and Border Protection v Singh [2016] FCA 575 (Singh) and in his earlier decision in Pilbara Infrastructure. In Singh, His Honour said:
[52] It is well established that a mere incorrect finding of fact (if it is not a jurisdictional fact) or merely unsound reasoning is not jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J); SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402, 407-408 [20] (the Court); Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 [20] (North and Lander JJ); SZRPT v Minister for Immigration and Border Protection [2014] FCA 24 [36] (Katzmann J).
[53] Although an incorrect finding of fact (which is not a jurisdictional fact) will not be a jurisdictional error, it may be arguable that a jurisdictional error exists where an erroneous finding of fact can be characterised as unreasonable or irrational, even if the exercise of power is not expressly or impliedly conditioned upon reasonable and rational fact finding. In Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 [141]-[194], I considered the authorities in relation to erroneous factual findings. The issue had been raised in that case but it had not been fully argued. My view was that recognition of a ground of review based upon unreasonable or irrational fact finding may require development of Australian law. Although there may be arguments in favour of such a development, it should not be undertaken without careful consideration. It involves the boundary of a fundamental divide which still exists in Australian law. That divide is sometimes expressed as one between decisions that are within power and those which are ultra vires. It is sometimes described as the difference between a review on the basis of legality and authority and a review on the basis of "merits". And it is sometimes characterised as an error which is "jurisdictional" and one which is "non-jurisdictional": see S Gageler "The Master of Words: Who Chooses Statutory Meaning?" in A Connolly and D Stewart (eds) Public Law in the Age of Statutes: Essays in Honour of Dennis Pearce (Federation Press, Sydney, 2015) 12, 15.
[54] Some recent decisions have suggested that such review of findings of fact might have been contemplated by the decision of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 365-366 [72] where their Honours spoke of a decision maker committing jurisdictional error by acting unreasonably in a legal sense in relation to "[t]he more specific errors in decision-making, to which the courts often refer" and committing "a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally". However, the reference to specific errors in decision making was accompanied by a footnote reference to Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(2) which is concerned with discretionary exercises of power, rather than findings of fact. Similarly, Gageler J referred to reasonableness as a condition of the exercise of a discretionary power as well as where reasonableness is a prerequisite to an exercise of a statutory power or performance of a statutory duty (370-371 [90]). His Honour did not say that mere unreasonable fact finding would suffice.
123 The above paragraphs were cited by Burley J in SZTKR v Minister for Immigration and Border Protection [2018] FCA 1613 although, ultimately, the question did not have to be determined in that case.
124 In his earlier decision in Pilbara Infrastructure, at [141]-[194], Edelman J had undertaken an extensive analysis of the authorities in relation to erroneous factual findings in administrative decision making and whether they might constitute jurisdictional error. Importantly (at [154]), his Honour recognised that, at least to that point in time, jurisdictional error for unreasonableness was confined to the exercise of discretion:
[154] Nevertheless, the traditional approach to unreasonableness review in Australian administrative law has focused upon unreasonable exercises of discretion by an administrative decision maker. Many, many statements about unreasonableness review speak of unreasonableness in the exercise of a discretion.
125 That was certainly the underlying rationale of the observations of Mason CJ (with whom Brennan J and Toohey and Gaudron JJ agreed on this point) in Bond (at 358-359) to the effect that the only ground for reviewing a finding of fact, which is not itself a decision, was the absence of any evidence:
The Federal Court has expressed its agreement with statements made by the House of Lords to the effect that courts exercising judicial review should leave the finding of facts to the public body appointed for that purpose by the legislature except where the public body acts "perversely". In this context, "perversely" signifies acting without any probative evidence.
(citations omitted)
126 As Edelman J observed, Mason CJ subsequently in his reasons for judgment in Bond identified that the position in England, that an irrational factual finding or an irrational drawing of inference was a recognised ground of review, had not been accepted in Australian courts.
127 His Honour also considered the several reasons for judgment in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. That case, like the present, concerned an argument advanced that the finding of fact by a decision-maker that a person did not have a well-founded fear of being persecuted was open to review on the grounds of unreasonableness. He observed that Gleeson CJ and McHugh J found that there was no unreasonableness in the decision and said that there was a "serious question whether the suggested error [being one of fact] is of the kind to which the Wednesbury principle is directed": Eshetu at 626 [40]. Hayne J expressed no view as to whether unreasonableness extended to fact finding. Gaudron and Kirby JJ did not suggest any limit on the scope of unreasonableness. Callinan J rejected the ground of unreasonableness was made out in the matter before the Court, and Gummow J, who had correctly identified the question as one of jurisdictional fact review, concluded that it was inapplicable to review of a finding of fact.
128 After his extensive review in Pilbara Infrastructure, Edelman J concluded that, as at that point in time, there was considerable doubt as to whether a court could review an administrative decision for unreasonableness based on a finding of fact, short of there being "no evidence" for the finding. He also considered that, given the previous statements from the High Court, only it was now able to develop the law on this topic. Not in the least because the question would involve a consideration of the constitutional framework in which the power of federal courts to issue the Constitutional writs arises from s 75(v).
129 Save to the extent that subsequent High Court decisions may have developed the position, I agree with his Honour's observations as to the scope of relief available for unreasonableness. Great difficulty would follow for the administration of justice if the growing trend of regarding certain decisions of the High Court as falling into desuetude merely through the effluxion of time were to continue, rather than a strict application of stare decisis.